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y^L^IE POSTAL POWER OF CONGRESS 

A STUDY IN CONSTITUTIONAL EXPANSION • 



H.R.n. 



BY 
LINDSAY ROGERS 



A DISSERTATION 

Submitted to the Board of University Studies of The Johns 

Hopkins University in Conformity with the Requirements 

for the degree of Doctor of Philosophy 

1915 



Baltimore 
1916 






\ 



/ 



H.R.n. 



THE POSTAL POWER OF CONGRESS 



THE POSTAL POWER OF CONGRESS 

A STUDY IN CONSTITUTIONAL EXPANSION 



BY 

LINDSAY ROGERS 

H 



A DISSERTATION 

Submitted to the Board of University Studies of The Johns 

Hopkins University in Conformity with the Requirements 

for the degree of Doctor of Philosophy 

1915 



BALTIMORE 
1916 



\9^ 



Copyright 19 i6 by 
THE JOHNS HOPKINS PRESS 



am 



APR '.J; Ibiii 



PRESS OF 

THE NEW ERA PRINTINQ COMPANY 

LANCASTER, PA. 



) 



CONTENTS 

Page 

Preface vii 

Chapter I. Introductory: The Antecedents of the 

Power 9 

Chapter IL The Power of Congress to Establish 

Postoffices 26 

Expansion of Facilities 26 

Collectivist Activities 33 

Postal Crimes 36 

Fraud Orders 56 

Chapter III. The Power of Congress to Establish 

Postroads 61 

Legislative Action 61 

Judicial Determinations 80 

Chapter IV. Limitations on the Postal Power 97 

Freedom of the Press 98 

Unreasonable Searches and Seiz- 
ures 123 

Chapter V. The Power of the States to Interfere 

with the Mails 127 

Chapter VI. The Extension of Federal Control Over 

Postroads 150 

Federal Ownership of Railroads 150 

Postal Telegraphs and Telephones 156 
Chapter VII. The Extension of Federal Control 

Through Exclusion From the Mails 158 



PREFACE 

The purpose of this essay is to trace the legislative and 
judicial history of the grant to Congress of the power "to 
establish postoffices and postroads/' and to discuss the con- 
stitutionality of the proposals that, under this clause, federal 
control may be extended to subjects over which Congress 
has no direct authority. The essay is thus one in constitu- 
tional expansion, and does not consider the history or effi- 
ciency of the postoffice as an administrative arm of the 
government. A treatment of this subject, which has as yet 
received scant notice, I may some day attempt. 

Portions of Chapters IV and VII have appeared as 
articles on " Federal Interference with the Freedom of the 
Press," and " The Extension of Federal Control through 
the Regulation of the Mails," in the Yale Law Journal 
(May, 1914) and the Harvard Law Review (November, 
191 3) respectively. They have been thoroughly revised for 
publication in their present form. Chapter V appeared in 
substantially the same form in the Virginia Law Review 
(November, 191 5). 

I am under great obligations to Professor W. W. Wil- 
loughby, not only for much direct assistance in the prepara- 
tion of this essay, but for the inspiration of his productive 
scholarship. 

L. R. 



vu 



THE POSTAL POWER OF CONGRESS 



CHAPTER I 
Introductory: The Antecedents of the Power 

It is, perhaps, not insignificant that The Federalist con- 
tains but a single reference to the power lodged in Congress 
"to establish postoffices and postroads." The writers of 
that incomparable collection of political papers which dis- 
cussed in such exhaustive detail the disputed points of the 
proposed governmental frame-work for the United States 
of America, hardly needed to argue that the proposed dele- 
gation could not be deemed dangerous and was admittedly 
one of national concern. " The power of establishing post- 
roads," said Madison, " must, in every view, be a harmless 
power, and may, perhaps, by judicious management, become 
productive of great public conveniency. Nothing which 
tends to facilitate the intercourse between the states can be 
deemed unworthy of the public care."^ 

Half a century later. Story prefaced the discussion of this 
power in his Commentaries, with the remark that, ** One 
cannot but feel, at the present time, an inclination to smile 
at the guarded caution of these expressions, and the hesitat- 
ing avowal of the importance of the power. It affords, 
perhaps, one of the most striking proofs, how much the 
growth and prosperity of the country have outstripped 
the most sanguine anticipations of our most enlightened 
patriots."^ 

At the time Story wrote, the postal power had, of course, 
already achieved a "commercial, political, intellectual and 

^The Federalist, No. 42. 

^ Story, Commentaries on the Constitution, vol. iii, p. 22. 

9 



10 THE POSTAL POWER OF CONGRESS 

private " importance, " of incalculable value to the perma- 
nent interests of the Union," vital both to the government 
and to individuals. But there was also the problem, lately- 
acute, as to whether Congress had simply the power "to 
designate, or point out, what roads shall be mail roads, and 
the right of passage or way along them when so designated," 
or the larger power " to construct any roads which Congress 
may deem proper for the conveyance of the mail, and to 
keep them in due repair for such purpose."^ The remark- 
able benefits already achieved and the disputed extensions 
were the developments which excited Story's surprise at the 
unprophetic remark of The Federalist. 

But for some time the postoffice has been a common 
carrier and is now supplanting the express companies ; it 
exercises banking functions not only for facilitating ex- 
change but for savings deposits, and other coUectivist activi- 
ties are most strongly urged. The Supreme Court of the 
United States has upheld a broad power in Congress to 
prevent and punish interference with the carriage of the 
mails, and it is thus possible to make further extensions of 
federal authority.* The right to incorporate railways and 
build postroads is firmly established, and assertions are made 
that it is both competent and advisable for federal authority 
to assume control of the telephone and telegraph systems 
and perhaps the railways themselves. It is, finally, argued 
that Congress may solve problems of purely local origin, and 
of primary sectional concern, through the simple expedient 
of denying the use of the mails unless certain regulative 
conditions are complied with. Viewing these extensions as 
either definitely upheld by the Supreme Court, or seriously 
urged, one cannot now but smile at the " guarded caution " 
of Story's description and his "hesitating avowal" that 
postroads might, with certain restrictions, be constructed 
under federal auspices. The distinguished jurist, however, 
Avrote more prophetically than he knew, when he enipha- 

3 Story, Commentaries on the Constitution, vol. iii, p. 26. 
4 In Re Debs, 158 U. S. 564 (1895). 



THE ANTECEDENTS OF THE POWER I I 

sized the importance of this power, " both theoretically and 
practically." 

Yet it is not unnatural that at the time the Constitution 
was framed, the importance of the postal power should have 
been inadequately estimated, since, inherently, it must be 
conditioned by the existing mechanical means of intercourse 
and communication. It seemed that the nation would be 
sufficiently fortunate were it to be born with promise of 
maintaining existence, and it was neither possible nor ad- 
visable to scrutinize its powers of which future necessity or 
expediency might require an extension for the purposes of 
the nation. And, moreover, the growth of postal facilities, 
from their first manifestation up to the adoption of the Con- 
stitution was not sufficiently pronounced to augur a great 
deal for the future. Travel and intercourse were extremely 
difficult ; and the cognate questions were to come only with 
the development of society. 

The maintenance of postal facilities has always been a 
recognized function of the state, and this was true even in 
early Rome. In England, the sixteenth century saw the 
first definite steps for the establishment of a service, but 
even before this communications were carried by royal 
messengers compensated by the Crown. Private posts 
were, of course, used, but official letters on state matters 
constituted so large a bulk of the correspondence and the 
problem was one so fitted for solution by the state that it 
was inevitable that the postal establishment should be con- 
ducted under the auspices of, and supported directly by the 
government.^ 

In the American colonies the first attempt to establish a 
mail service was made in 1639 by the General Court of 
Massachusetts. " For preventing the miscarriage of letters, 
... It is ordered that notice bee given, that Richard Fair- 
banks, his house in Boston, is the place appointed for all 
letters, which are brought from beyond the seas, or are to 
bee sent thither ; . . . are to bee brought to him and hee is to 

5 Hemmeon, The History of the British Post Office, p. 3 ff. 



12 THE POSTAL POWER OF CONGRESS 

take care, that they bee delivered or sent according to their 
directions and hee is allowed for every such letter id. and 
must answer for all miscarriages through his owne neglect 
in this kind ; provided no man shall bee compelled to bring 
his letters thither except hee please." So runs the entry in 
the court records.^ 

This, however, applied only to foreign mail, and it was 
not until December, 1672 that there was an effort to estab- 
lish a domestic post, Francis Lovelace, governor of New 
York, taking the initiative, and his messenger going to Con- 
necticut. Soon afterwards the General Court of Massa- 
chusetts appointed a postmaster and a proclamation was 
issued by the home government calling for the establish- 
ment of postoffices at convenient places on the American 
continent.'^ 

The office of postmaster general for America was created 
in 1692, permission being granted Thomas Neale and his 
executors by the Lords of Trade and Plantations to estab- 
lish "an office or offices for the receiving and dispatching 
letters and pacquets, and to receive, send and deliver the 
same under such rates and sums as the planters shall agree 
to give."^ 

The next forty years saw some extensions of postal facili- 
ties, but the improvement was slight. In 1683 William 
Penn established a postoffice in Pennsylvania, and in 1736 
a weekly mail was begun between Boston and New York, 
but intercolonial communication was very restricted, and it 
was not until 1737, with the appointment of Benjamin 
Franklin as postmaster general at Philadelphia and post- 
master general of the Colonies in 1753 that there were any 
noticeable gains, or any signs of important developments 

6 Mass. Historical Collections, 3d Series, vol. vii, p. 48 ; quoted by 
Mary E. Wooley in her monograph on " Early History of the Colo- 
nial Post Office," Publications of the Rhode Island Historical So- 
ciety, New Series, vol. i, p. 270 ff. 

''' Hemmeon, p. 32 ; Joyce, The History of the Post Office from its 
Establishment down to 1836, p. 196. 

8 Wooley, Early History of the Colonial Post Office, p. 275 ; Hem- 
meon, p. 33. See also Pliny Miles, " History of the Post Office," 
American Bankers' Magazine, n. s., vol. vii, p. 358 (November, 1857). 



THE ANTECEDENTS OF THE POWER 1 3 

for the state function of which he was placed in charge. 
Franklin was active in establishing new posts as far as was 
possible and began the practice of sending newspapers 
through the mails free of charge. When he was turned out 
of office in 1774, he wrote that '* before I was displaced by a 
freak of the ministers, we had brought it [the postoffice] to 
yield three times as much clear revenue to the crown as the 
postoffice in Ireland. Since that impudent transaction they 
have received from it not one farthing."^ 

After Franklin's dismissal the new postmaster at Phila- 
delphia raised the rates on newspapers to such proportions 
that William Goddard, an editor of Baltimore and Phila- 
delphia, was forced to discontinue the publication of his 
journal. In March, 1774 Goddard began a lengthy journey 
through the New England States to gain support for the 
" Constitutional American Post Office " which he hoped to 
establish.^*^ A tentative line was inaugurated between 
Baltimore and Philadelphia, but this was gradually extended 
so as to provide tolerably adequate facilities for all of the 
colonies, Goddard having secured the support of the as- 
semblies in New Hampshire, Massachusetts, Rhode Island, 
New Jersey, and New York.^^ He realized from the first 
that the facilities he was seeking should be furnished under 
the auspices of the Continental Congress, and when this 
body acted on July 26, 1775 and agreed to the establishment 
of a post, Goddard's plans were accepted.^^ 

The establishment of postal facilities was one of the very 
first problems taken up by the Continental Congress when 
it began to exercise sovereign powers which it did not 
legally possess, but which of necessity it had to assume. 
On May 29, 1775 the Congress resolved that, '*As the 
present critical situation of the colonies renders it highly 
desirable that ways and means should be devised for the 
speedy and secure conveyance of Intelligence from one end 

9 Miles, p. 361. 

1® American Archives, Fourth Series, vol. i, pp. 500-504. 

11 Ibid., vol. ii, p. 536 ff. 

^2 See Jameson (Ed.), Essays in Constitutional History, p. 168 ff. 



14 THE POSTAL POWER OF CONGRESS 

of the Continent to the other," a committee be appointed to 
consider the best means of establishing a post/^ and on July 
26, 1775 the Congress took up the committee's report, ap- 
pointed Benjamin Franklin postmaster general for the 
United Colonies, established a line of communication from 
Falmouth to Savannah and recommended the inauguration 
of cross posts within the discretion of the postmaster gen- 
eral.^* Franking privileges were almost immediately estab- 
lished for the members of Congress and for the army com- 
manders, and were later extended, with some limitations, to 
private soldiers in the service.^^ 

As yet the Congress had not aimed to make its postal 
establishment a monopoly and so it was a question of war 
policy rather than of the unrestricted exercise of a govern- 
mental function which inspired the motion that the parlia- 
mentary posts be stopped. Richard Henry Lee, for ex- 
ample, argued that "the Ministry are mutilating our cor- 
respondence in England, and our enemies here are cor- 
responding for our ruin ; " but the better opinion prevailed 
that the measure was an offensive one not proper at that 
particular juncture. In fact the ministerial post had been 
of service to the colonists in giving them information which 
they could not otherwise have obtained, and so it was recom- 
mended that the people use the constitutional establishment 
as much as possible. Before the end of the year, as it 
turned out, this problem was settled without the interven- 
tion of Congress for the British postoffice stopped its ser- 
vice in the colonies. ^^ 

13 Journals of the Continental Congress (edited by Ford), ii, p. 71. 
(References up to 1781 are to this edition, Washington, 1904 . . . 
Since the sixteenth volume, the editor has been Gaillard Hunt.) 

1* Ibid., vol. ii, p. 208. 

15 Ibid., vol. iii, p. 342 ; vol. iv, p. 43. 

16 Ibid., vol. iii, p. 488. In the discussion referred to Paine re- 
marked that the " ministerial post will die a natural death ; it has 
been under a languishment a great while ; it would be cowardice to 
issue a decree to kill that which is dying; it brought but one letter 
last time and was obliged to retail newspapers to pay its expenses." 
Lee was more facetious, saying : " Is there not a Doctor, Lord North, 
who can keep this creature alive?" On December 25, 1775, it was 
announced that incoming mail would not be sent to the various 
colonies but would be held in New York and advertised. 



THE ANTECEDENTS OF THE POWER I 5 

During the war the adequacy of the postal facihties was 
often before Congress. Committees were appointed to in- 
vestigate conditions ; Congress by resolution appreciated the 
fact that the " communication of intelligence with frequency 
and despatch from one part to another of this extensive 
continent, is essentially requisite to its safety." The post- 
master general was therefore requested to exercise care in 
the selection of riders and to discharge dilatory ones when 
discovered. Deputy postmasters were excused " from those 
public duties which may call them from attendance at their 
offices ; " admonitory resolutions directed ferry keepers to 
expedite the passage of postriders, and a public monopoly 
was aimed at through the indirect method of reducing the 
wages of government messengers who carried private 
packages. ^^ 

On November 7, 1776, Richard Bache was appointed post- 
master general vice Franklin who had gone on the mission 
to France, and after this change the attempts of Congress 
to improve the service seem to be more frequent.^^ In 
January of the next year, Bache was requested to furnish a 
list of those in the service, it having been reported that 
" persons disaffected to the American cause " had been em- 
ployed "with the most mischievous effects" and he was 
further requested to "assign reasons why the late resolves 
of Congress for regulating the postoffice are not carried into 
execution. "^^ In February a committee was appointed to 
revise the regulations ; it recommended extensions and sug- 
gested that all employees be required to take an "oath of 
fidelity to the United States and also an oath of office," and 
urged that once in six months the postmaster general be 
required to transmit to Congress a list of those in the 
service.2^ The legislatures of the states were asked to 
exempt from all military duties " persons immediately con- 

^'^ Journals of the Continental Congress, vol. v, pp. 719, 720; vi, 
p. 926. 

^^ Ibid., vol. vi, p. 931. 
^^ Ibid., vol. vii, p. 29. 
20 Ibid., p. 153. 



1 6 THE POSTAL POWER OF CONGRESS 

cerned in conducting the business of the postoffice," but still 
the establishment did not work to the satisfaction of Con- 
gress, and other committees were appointed to make recom- 
mendations and the rates of postage were several times in- 
creased. One new step was taken when an inspector of 
dead letters was appointed to " examine all dead letters at 
the expiration of each quarter ; to communicate to Congress 
such letters as contain inimical schemes or intelligence; to 
preserve carefully all money, loan office certificates, lottery 
tickets, notes of hand, and other valuable papers enclosed 
in any of them, and be accountable " for their safekeeping, 
subject to the restriction that he take " no copy of any letter 
whatever," and refuse " to divulge their contents to any but 
Congress or those whom they may appoint for the pur- 
pose."2i 

Meanwhile the Articles of Confederation had been agreed 
upon and submitted to the states. There was no objection 
to a grant of the postal power, but the terms in which it 
was made limited its extent. Part of Article XVIII in the 
first draft gave the United States " the sole and exclusive 
right and power of . . . establishing and regulating post- 
offices throughout all the United Colonies, on lines of com- 
munication from one colony to another," and later on in 
the same article, it was provided that the United States 
" shall never impose or levy any taxes or duties except in 
managing the postoffice."^^ In the second draft, the grant 
was made more limited ; it gave Congress " the sole and ex- 
clusive right and power ... of establishing and regulating 
postoffices from one state to another throughout all the 
United States and exacting such postage on the papers pass- 
ing through the same as may be requisite to defray the 
expenses of said office." In this form the clause became 
part of the Articles of Confederation as adopted by the 
states,^* and there was no further discussion of the power, 



21 Journals of the Continental Congress, vol. vii, pp. 258, 347 ; ix, 
816, 817, 898; xi, 550. 

22 Ibid., vol. V, p. 551. 

23 Ibid., pp. 681, 682; ix, 907. In the second draft the postal clause 
comes under Article 14 and in the final draft under Article 9. 



THE ANTECEDENTS OF THE POWER 1/ 

negative action being taken on the motion of the Pennsyl- 
vania delegates (June 25, 1778) "that such part of the 9th 
article as respects the postoffice, be altered or amended so 
as that Congress be obliged to lay the accounts annually 
before the legislatures of the several states. "2* 

The Articles of Confederation gave the limited power of 
establishing and regulating postoffices " from one state to 
another." Thus, intrastate postal facilities were beyond 
the purview of Congress ; nothing was said, moreover, 
about the establishment of postroads, or the opening up of 
new routes, and the sole power of taxation granted to Con- 
gress was confined to an amount sufficient to defray the 
expenses of the system. Nevertheless, the inadequacy of 
the grant was theoretical rather than real, since Congress 
was so occupied with other more pressing affairs, that it was 
content with a limited communication of intelligence, desir- 
ing solely that this be as speedy and secure as possible. 

From this time on references to the postal establishment 
in the congressional journals are of frequent occurrence ; 
additional investigating committees were established and 
the personnel of the standing committee was changed. Ex- 
penses grew apace while the revenues diminished and this 
called for measures of retrenchment. A resolution of De- 
cember 27, 1779, contained the regulation that "the post 
shall set out and arrive at the place where Congress shall be 
sitting twice in every week," and it was at the same time 
urged that " the whole expensive system of express riding 
be totally abolished except by the particular order of Con- 
gress upon very special occasions. "^^ 

On October 18, 1782, under the power granted by the 
Articles of Confederation, there was passed " An Ordinance 
for Regulating the Post-Office of the United States of 
America." For the period it was a most elaborate statute 
and marks the birth of a real postal establishment. Of such 

2* Journals of the Continental Congress, vol. xi, p. 652. The vote 
stood, Ayes, 2; Noes, 9. 
25 Ibid., vol. XV, p. 141 1. 



1 8 THE POSTAL POWER OF CONGRESS 

comprehensiveness was the act that when, ten years later, 
Congress passed legislation under the authority delegated 
by the Constitution, the Ordinance was merely amplified. 

Its preamble recited : 

"Whereas the communication of intelligence with regu- 
larity and dispatch from one part to another of these United 
States is essentially requisite to the safety as well as the 
commercial interest thereof ; and the United States in Con- 
gress assembled being by the Articles of Confederation 
vested with the sole and exclusive right and power of estab- 
hshing and regulating postoffices throughout all these United 
States; and whereas it is become necessary to revise the 
several regulations heretofore made relating to the postoffice 
and reduce to one act : 

" Be it therefore ordained by the United States in Con- 
gress assembled, and it is hereby ordained by the authority 
of the same, that a continued communication of posts 
throughout these United States shall be established and 
maintained by and under the direction of the postmaster 
general of these United States to extend to and from the 
state of New Hampshire to the state of Georgia inclusive, 
and to and from such other parts of the United States as 
from time to time he shall judge necessary or Congress 

shall direct."2« 

The duties of the postmaster general were " to supenntend 
and direct the postoffice in all its various departments and 
services . . . agreeably to the rules and regulations " of the 
ordinance. He was given the power to appoint an assistant 
and deputies, for whom he should be responsible ; to station 
them, and to fix their commissions, with a maximum limit 
of 20 per cent, on money " to arise from postage in their 
respective departments." He was given the further power 
of appointing postriders, messengers and expresses. 

In this ordinance, moreover. Congress attempted to lay 
down certain regulations, infraction of which would be 
punishable, although not criminally or in an efficient manner. 
All persons in the service wer e forbidden knowingly or 

267 Journals of Congress (Ed. of 1800), 3^3- 



THE ANTECEDENTS OF THE POWER 1 9 

wilfully "to open, detain, delay, secrete, embezzle, or de- 
stroy, or cause, procure, permit, or suffer to be opened, 
detained, delayed, secreted, embezzled or destroyed, any 
letter or letters, packet or packets, or other dispatch or dis- 
patches, which shall come into his power, hands, or custody, 
by reason of his employment in, or relation to, the post- 
office, except by the consent of the person or persons by or 
to whom the same shall be delivered or directed, or by an 
express warrant under the hand of the president of the 
Congress of these United States or in time of war, of the 
commander in chief of the armies of these United States, 
or of the chief executive officer of one of the said states, 
for that purpose, or except in such other cases wherein he 
shall be authorized to do so by this ordinance." 

All persons in the postal service were required, antecedent 
to their employment, to take an oath promising to carry out 
and obey these meticulous provisions to safeguard the mails, 
but the method of enforcement was ineffective. Congress 
provided that " if the postmaster general shall be guilty of 
the said oath or affirmation or any part thereof, and be 
thereof convict, he shall forfeit and pay i,ooo dollars in an 
action of debt in the state where the offense shall be com- 
mitted, by the treasurer of the United States for the time 
being." The penalty for other employees was $300, but all 
were " rendered incapable ever hereafter of holding any 
office or place of trust or profit under these United States. "^^ 
In order to make probable a higher degree of efficiency 
and to insure adequate revenues, the Congress attempted to 
make and enforce a monopoly. The Ordinance specified 
that the postmaster and his assistants, but " no other person 
whatsoever shall have the receiving, taking up, ordering, 
dispatching . . . carrying and delivering of any letters, 
packets or other dispatches, from any place within these 
United States for hire, reward, or other profit or advantage 
. . . and any such person or persons presuming to do so, 

^■^ 7 Journals, 383 ff. Special messengers and expresses were ex- 
empted from this provision at the discretion of the postmaster 
general. 



20 THE POSTAL POWER OF CONGRESS 

shall forfeit and pay for every such offense, 20 dollars, to 
be sued for and recovered in an action of debt with costs of 
the suit." Persons on private missions were exempted and 
private cross posts could be established with the approval 
of the postmaster general. By the ordinance rates were 
fixed and special provisions were made for newspapers 
which were to be carried " at such moderate rates as the 
postmaster general shall establish." The franking privi- 
lege, finally, was extended to the officials at Washington 
and single letters could be sent without postage to officers 
of the line in actual service ; by early amendments to the 
ordinance there were further extensions, Washington was 
relieved of paying postage and allowance was made for 
ministers at foreign courts.^^ 

The incompleteness of the national control over the post- 
office and in particular the inadequacy of the device that 
really criminal offenses should be punished by civil suits, 
were shown in January, 1784 when Congress considered a 
robbery which had taken place at Princeton. The mail had 
been carried off and some days later was found in a meadow, 
several letters having been lost and several more, franked 
by members of Congress, having been broken open. The 
" supreme executive of the state of New Jersey " was re- 
quested to undertake an investigation to discover those 
guilty, but when his reply exculpated the Princeton post- 
master " from every suspicion of collusion or fraud " the 
inquiry was dropped. Congress could proceed no further.^® 

Another incident showing general acceptance of the fact 
that the regulation of the mails and the punishment of 
offenses against them should be under plenary national 
control, occurred a few months later and was considered by 
the Committee of the States during a recess of Congress. 
An investigating committee reported that an advertisement 
of French packet boats was "an open avowal of an inten- 
tion to contravene an ordinance of Congress for regulating 

28 8 Journals, 40, 131, 193 ; 9 Journals, 130. 
*^ 9 Journals, 15, 147. 



THE ANTECEDENTS OF THE POWER 21 

the postoffice of these United States ; and that the measures 
therein mentioned . . . are a flagrant violation of the same 
ordinance . . . will greatly injure the revenue of the post- 
office, and, if not prevented, may defeat that useful institu- 
tion." The Committee of the States agreed to the report and 
directed that if the postmaster general should determine 
that the ordinance had been violated, he should cause the 
prosecution of the offenders according to law, namely, make 
them defendants in actions of debt for the penalties pro- 
vided by the ordinance.^^ 

On September 4, the postmaster general was given au- 
thority to contract for the conveyance of the mails by stage 
carriages, if practicable, for one year, but on the part of 
some of the states considerable opposition developed. A 
motion was made to construe the words " if practicable " as 
not binding the postoffice "to form the contract for the 
transportation of the mail on terms inconvenient to the 
mercantile interest, or to comply with the extravagant de- 
mands of the contractors," but the vote was in the negative 
and a second attempt to modify the original instruction was 
also unsuccessful.^^ The later motion showed a disposition 
on the part of the states to desire flexible national regula- 
tions, which would not necessarily be uniform, but would 
be adapted to local needs. The resolution recited that in 
respect to the states of New Jersey, Pennsylvania, Dela- 
ware, Maryland and Virginia, the mails might "be carried 
upon more reasonable and convenient terms should the post- 
master general be left at liberty to contract for the same 
either by stage carriages or postriders, as shall appear to 
him most conducive to the public interest. 

"And whereas the intention of Congress in having the 
mail transported by stage carriages was not only to render 
their conveyance more certain and secure, but by encourag- 
ing the establishment of stages to make intercourse between 
different parts of the union less difficult and expensive than 

2^9 Journals (App.), 10. 
31 II Journals, 154, 191. 



22 THE POSTAL POWER OF CONGRESS 

formerly ; and as a discretionary power in the postmaster 
general either to employ postriders or contract with the 
owners of stage carriages for conveying the mail in the 
states of North Carolina, South Carolina, and Georgia 
might interfere with the object of promoting and establish- 
ing the running of stages in said states, Resolved, that so 
far as respects these states it is improper to alter the post- 
master general's present instructions. "^^ Thus very early 
attempts were made to secure special local facilities. 

During this period, however, subsequent to the ordinance 
of 1782, Congress took no important action in regard to the 
postoffice. It annually gave the postmaster general author- 
ity to contract for the succeeding year, and to encourage the 
useful institution of the postoffice when it could be done 
without material injury to the public.^^ In the enforcement 
of federal regulations, as has been said, the government was 
limited by having to sue in actions of debt, and so it was a 
foregone conclusion that the postal power, inadequately 
vested in Congress under the Articles of Confederation, 
would be one of the grants contained in the Constitution. 
The Pinckney plan as it was submitted to the Committee of 
Detail, mentioned " establishing Post-Offices " as one of the 
exclusive powers of "the Senate and House of Delegates 
in Congress assembled."^* Pinckney's original draft out- 
lined the power as that "of establishing Post-Offices and 
raising a revenue from them."^^ 

In the Convention Mr. Pater son on June 15, 1787 sug- 

32 Congress approved the action of the postmaster general in direct- 
ing his deputies not to receive the paper money of any state for 
postage, and to accept only specie. He was also authorized to de- 
mand payment in advance. 11 Journals, 84, 164. 

33 12 Journals, 137. ♦ 

3* Farrand, Records of the Federal Convention, vol. ii, p. 135. 

35 This is the draft as reconstructed by Professor Farrand (vol. 
iii, pp. 604, 607), but the document sent by Pinckney in 1819 to John 
Quincy Adams for publication in the journal, omitted the last clause. 
This draft, however, was written not very long before 1819, and was 
not presented to the Convention in 1787. See Records, vol. iii, p. 
595 ff; "Sketch of Pinckney's Plan for a Constitution, 1787," in 
American Historical Review, vol. ix, p. 735, and Bancroft, History 
of the Constitution, vol. i, p. 258. 



THE ANTECEDENTS OF THE POWER 23 

gested " that in addition to the power vested in the United 
States by the existing articles of Confederation, they be 
authorized to pass acts for raising a revenue, ... by a post- 
age on all letters and packages passing through the general 
postoffice, to be applied to such federal purposes as they 
shall deem proper and expedient."^® The report of the 
Committee of Detail was made to the Convention on August 
6 and provided (Art. VII) that "The Legislature of the 
United States shall have the power ... to establish post- 
offices."^^ 

Ten days later, the Committee's report being under con- 
sideration it was proposed that the words " and postroads " 
be added. This was carried by a close vote, though it is 
difficult to attribute the opposition to any source other than 
a general fear of giving the federal government too much 
power and thus endangering the chances for adoption.^^ 
To this feeling also, may be ascribed the result that, when, 
later, some urged the insertion of an additional grant "to 
regulate stages on the post roads," the proposal was not 
reported from the Committee of Detail. ^^ Such a power 
has, however, been fully exercised. 

The report of the Committee of Style, made on September 
12, fixed the grant as that "to establish postoffices and post- 
roads," this being the form in which it became a part of the 
Constitution.*^ Dr. Franklin, however, advocated that 
there be added " a power to provide for cutting canals where 
deemed necessary."*^ The motion was seconded, but Mr. 
Sherman started the opposition by objecting on the ground 
that the "expense in such cases will fall on the United 
States and the benefits accrue to the places where the canals 
may be cut." Mr. Wilson, on the contrary, argued that 

36 Farrand, vol. i, p. 243. 
^"^ Ibid,, vol. ii, p. 177. 

38 Ibid., p. 303. New Hampshire, Connecticut, New Jersey, Penn- 
sylvania and North Carolina were opposed. Rhode Island and New 
York did not vote. The other states were in favor. 

39 Ibid., p. 324. 

**^ Constitution, Art. I, Sec. 8, Clause 7 ; Farrand, vol. ii, p. 590. 
*i Farrand, vol. ii, p. 615. 



24 THE POSTAL POWER OF CONGRESS 

instead of being an expense to the United States, the canals 
might be made a source of revenue, and Madison wanted 
"an enlargement of the motion into a power to grant 
charters of incorporation where the interest of the United 
States might require, and the legislative provisions of the 
individual states might be incompetent. His primary object, 
however, was to secure an easy communication between the 
states which the free intercourse, now to be opened, seemed 
to call for. The political obstacles being removed, a re- 
moval of the natural ones as far as possible ought to fol- 
low."*^ The question, however, was limited to the single 
case of canals, and when put to a vote was defeated, because 
there was an antipathy to monopolies,*^ and because, as 
Gouvemeur Morris admitted, " It was extremely doubtful 
whether the Constitution they were framing could ever be 
passed at all by the people of America; that to give it its 
best chance, however, they should make it as palatable as 
possible, and put nothing into it, not very essential, which 
might raise up enemies."** 

This history of the postal clause in the Federal Convention 
offers little of interpretative importance. The intent of the 
framers is sufficiently clear, although, as pointed out by one 
commentator, the delegation is clothed in words which 

*2 Farrand, vol. ii, p. 615. 

*3 The vote on the motion was 8 to 3 (New Hampshire, Connecti- 
cut, Massachusetts, New Jersey, Delaware, Maryland, North Caro- 
lina, and South Carolina opposed; Pennsylvania, Virginia, Georgia 
in favor). This incident in the Federal Convention was to figure in 
the congressional debates over the incorporation of banks and the 
construction of postroads. Opinions have differed as to whether the 
action of the Convention may be said to show that the Constitution 
did not contemplate the exercise by Congress of a power to incor- 
porate. Madison's record says : " Mr. King thought the power unnec- 
essary. . . . Mr. Wilson mentioned the importance of facilitating 
by canals the communication with the Western Settlements. As to 
Banks, he did not think with Mr. King that the power in that point 
of view would excite the prejudices and parties apprehended. As to 
mercantile monopolies, they are already included in the power to 
regulate trade." Farrand, vol. iii, p. 615. Madison's later opinion 
(1824) was that a general power to incorporate had been negatived. 
Ibid., p. 463- 

4* Jefferson's Anas in T. J. Randolph, Memoir, Correspondence 
... of Thomas Jefferson, vol. iv, p. 506. 



THE ANTECEDENTS OF THE POWER 2$ 

"poorly express its object" and "feebly indicate the par- 
ticular measures which may be adopted to carry out its 
design. To establish post offices and post roads is the form 
of the grant ; to create and regulate the entire postal system 
of the Government is the evident intent."*^ 

It is possible partially to explain the specific negativing of 
the power to cut canals on the ground that there was no 
limitation to those cases in which the construction would 
have been an aid to interstate commerce or the transporta- 
tion of the mails. Under the amendment as proposed Con- 
gress would have had the authority to cut a waterway 
wholly within a state for purely intra-state purposes.'*® As 
a matter of fact, however, this power, which later was to 
give rise to considerable controversy, has been exercised by 
the federal government under its authority to regulate inter- 
state commerce and establish postroads, just as the postal 
grant itself has been extended to cover fields, neither exist- 
ing nor within the range of possibility when the Constitution 
was adopted. 

In the state conventions there was practically no discus- 
sion of the postal power. Its innocuousness was granted. 
Mr. Jones of New York was alone in finding a latent ag- 
gression, and it was resolved, as the opinion of the state 
committee, "that the power of Congress to establish post- 
offices and postroads is not to be construed to extend to the 
laying out, making, altering, or repairing highways, in any 
state, without the consent of the legislature of such state. "*^ 
Such a stipulation was destined very soon to become a mere 
brutum fulmen.*^ 

*^ Pomeroy, Constitutional Law, p. 264. 

*^ See Brown, The Commercial Power of Congress, p. 132. 

^"^ Elliot's Debates, vol. ii, p. 406. 

** See Moore, American Eloquence, vol. i, p. 349. 



CHAPTER II 
The Power of Congress to Establish Postoffices 

Expansion of Facilities. — " Our whole economic, social 
and political system," says President Hadley, "has become 
so dependent upon free and secure postal communication, 
that the attempt to measure its specific effects can be little 
less than a waste of words. "^ This is hardly an overstate- 
ment of the case, yet, as we have seen, the importance of the 
postal function was recognized before the Constitution was 
adopted and when it comprehended only the transmission of 
intelligence. The increased importance, however, has been 
absolute as well as relative, since through the postoffice the 
government now does much more than merely facilitate 
communication between its citizens. 

An act for the temporary establishment of the postoffice 
was passed by Congress on September 22, 1789.^ It pro- 
vided for the appointment of a postmaster general, all the 
details and regulations to be as they " were under the resolu- 
tions and ordinances of the late Congress. The postmaster 
general to be subject to the direction of the president of the 
United States, in performing the duties of his office, and in 
forming contracts for the transportation of the mail."® 

For a considerable period congressional and administra- 
tive efforts were devoted almost exclusively to the extension 
of facilities; postoffices were established as rapidly as pos- 
sible ; every effort was made to secure speedy transportation 
of the mail, to insure its security, to prevent private competi- 

1 Art, " Postoffice," Lalor, Cyclopaedia of Political Science, vol. 
iii, p. 310. 

2 I Stat. L. 70. 

3 This act was limited to August 12, 1790. On August 4, 1790, it 
was continued until March 4, 1791 ; on March 3 until February 20, 
1792, when Congress passed " An Act to establish the postoffice and 
postroads in the United States." i Stat. L. 178, 218, 232. 

26 



POWER OF CONGRESS TO ESTABLISH POSTOFFICES 2/ 

tion, and by means of an increasingly efficient system to weld 
together distant parts of the country. The communications 
of the postmasters general are devoted to recommendations 
for the improvement of the service;* presidential messages 
take pride in reporting the growth of the establishment, 
which was rapid. In 1790 there were about 100 postoffices 
in the country; the receipts from October, 1790 to October, 
1 791 were $31,706.27 and the disbursements left a balance 

of $5498.51.' 

But in 1823 Monroe was able to report to Congress that 
88,600 miles of postroads had been established by law and 
that the mail was transported over 85,700 miles of this total.^ 
During the two years from July i, 1823 the increase of the 
transportation of the mail exceeded 1,500,000 miles annually 
and 1,040 new postoffices were established."^ In 1828 the 
total mileage was 114,536 as compared with 5,642 in 1792 
and in 1837 was 142,877 miles.^ The receipts from postage 
for the year ending March 31, 1828 were $1,058,204.34. 
These figures serve, in some measure at least, to indicate the 
rapid expansion of the postal system.^ 

At the same time there was a commensurate recognition 
of the importance of the establishment in the attitude of 
Congress and the executive in dealing with it as an admin- 
istrative arm of the federal government. The act of 1810 
referred to the " postoffice establishment " ; an incidental 
use of the word " department " is to be found in the laws of 

* For example, Gideon Granger, postmaster general, wrote in 1810 : 
" From the nature of our government it becomes a matter of the 
highest importance to furnish the citizens with full and correct infor- 
mation, and, independent of political considerations, the interests of 
society will be best promoted, particularly in the interior, by extend- 
ing to it the facilities of this office. Nor can the seaboard complain as 
it puts a profit on all that the interior produces for exportation, and 
on all it consumes from foreign countries." American State Papers 
(Postoffice), vol. XV, p. 42. 

5 Williams, The American Postoffice, p. 20 (6ist Congress, 2d Sess., 
Sen. Doc. No. 542). 

6 Richardson, Messages and Papers of the Presidents, vol. ii, p. 215, 
'''Ibid., p. 311. 

s Ibid., p. 419. 
9 Williams, p. 25. 



28 THE POSTAL POWER OF CONGRESS 

1799 and 1 810/*^ but the system became an executive depart- 
ment in 1872 when Congress, codifying the postal laws, 
passed an act under which the department is now organ- 
ized.^^ In 1827 the postmaster general's salary was in- 
creased to $6,000 per annum, and he was thus placed on an 
equality with cabinet officers ; two years later Jackson made 
him a member of his official family/^ 

Later in this essay will be found a consideration of the use 
made by Congress of the postroads clause,^^ in the assump- 
tion of authority to aid in works of internal improvement, 
but here some mention should be made of the connection 
which has existed between the desire for a speedy trans- 
portation of the mail and aid granted to railroads. This 
aid took the form of donations, with mail service free or at 
reasonable rates, loans to companies, and general contracts 
for service, with the purpose of giving aid as well as paying 
compensation.^* In debating the desirability of govern- 
mental stock subscriptions in transportation undertakings 
Congress often adverted to the carriage of the mails ; and in 
1834 it was proposed to give the Baltimore and Ohio Rail- 
road Company $320,000 in return for which the mail was to 
be carried free forever.^^ Similar suggestions were made 
from time to time, but there was little definite action, and 
in 1845 the postmaster general was authorized to contract 
for the transportation of the mail by railroads, without in- 
viting bids.^^ 

Since 1850 the postoffice has not been used, at least 

^^ 2 Stat. L. 592, and i Stat. L. 733. 

11 Learned, The President's Cabinet, p. 231. See also U. S. v. Ken- 
dall, 5 Cranch (U. S. C. C, 1837), 275. 

12 Bassett, Life of Andrew Jackson, vol. ii, p. 413. "... in intro- 
ducing the postmaster general into the cabinet, Jackson began a 
practice that probably tended, in the long run, to invigorate the 
workings of the postal establishment, notwithstanding the fact that 
Barry, successor to McLean in the office, made a conspicuously 
dismal record." Learned, p. 250. 

13 Below, Chapter III. 

1* See Haney, Congressional History of Railways, p. 319 (Bulletin 
of the University of Wisconsin : Economic and Political Science 
Series, vol. iii). 

15 10 Congressional Debates, 1752. 

16 Haney, p. 323. 



POWER OF CONGRESS TO ESTABLISH POSTOFFICES 29 

avowedly, to aid railways ; the period has rather been one of 
regulation. Disputes have arisen over the proper compen- 
sation for service rendered, and companies have refused to 
give facilities for transportation.^^ It was proposed, there- 
fore, that the roads be forced to carry the mails, and in 
1870 an act to this effect was applied in the District of 
Columbia, compensation to be determined by three commis- 
sioners. But in 1872,^^ the codification of the postal laws 
provided rates for service, with compulsory service by the 
roads which had received land grants ; if the companies 
were not satisfied with the amounts fixed by Congress, 
letters were to be forwarded by horse, and the articles for 
which expedition was not required, were to be sent by 
stage.^® At present compensation is determined by an 
elaborate system, under maximum rates fixed by Congress. 
The postmaster general may make reductions for refusal to 
transport, when required, upon the fastest trains,^*^ and may 
impose fines for inefficient service and delays. ^^ The neces- 
sity has not arisen, but if the railways should refuse to carry 
the mails, on the ground of inadequate compensation, Con- 
gress would have the right to compel transportation, upon 
reasonable compensation for the taking of private property 
for public use.^2 

This, however, is only one phase of the financial problem 
of the postoffice ; another, very important phase involves the 
cost to patrons. Rates for the transmission of letters re- 
mained practically unaltered until 1845, while the charges 
for newspapers were slightly changed in the direction of 
allowing the publishers special privileges. The act of 
1845^^ exercised a broad authority of classification, separat- 

^■^ 48th Cong., 2d Sess., Sen. Exec. Doc. No. 40. 
18 16 Stat. L. 115; 17 Stat. L. 309. 

1^ Haney, p. 206 (Bulletin of the University of Wisconsin: Eco- 
nomic and Political Science Series, vol. vi). 

20 23 Stat. L. 156. 

21 See Postal Laws and Regulations of 1913, Title X, " Transpor- 
tation of the Mails," p. 607 ff. 

22 See 43d Cong., ist Sess., Sen. Rep. No. 478. This point is 
developed below, p. 151 ff. 

23 5 Stat. L. 733. 



30 THE POSTAL POWER OF CONGRESS 

ing the mail in order to expedite it, and introducing the free 
privilege for newspapers not more than 1,900 square inches 
in size, distributed within 30 miles of the place of printing. 
The act of 1847^* allowed free exchanges only between pub- 
lishers, and following this statute many changes were made, 
both in the conditions of exemption from postage and the 
rates which were charged. The classification now obtain- 
ing was adopted in 1879,^^ and the cent a pound rate for 
periodical matter admitted to " second class " privileges was 
fixed in 1885.^6 

But while concessions were made to encourage the circula- 
tion of newspapers. Congress maintained rigid restrictions in 
respect to the size of the packages that could be carried in 
the mails. The limit was three, and later four pounds. 
This was originally due to the fact that large packages could 
not be handled with convenience by the system and were 
likely to injure or deface other mail matter. But when 
federal facilities became sufficient to take off, or at least 
raise, the weight limit, the express companies, which at this 
time were beginning to derive a large revenue from carrying 
parcels, were able to postpone congressional action until 
August 24, 1912^^ when the Parcels Post Act was passed 
after it had been repeatedly recommended by postmasters 
general and long desired by public opinion.^^ Such delay 
has, of course, not been without bitter criticism,^^ and in 

24 9 Stat. L. 202. 

25 10 Stat. L. 38. 

2623 Stat. L. 387. For further details of the special privileges 
granted periodicals, see Report of the Commission on Second Class 
Mail Matter (1912), p. 57 if . 

27 37 Stat. L. 557. " That hereafter fourth class mail matter shall 
embrace all other matter, not now embraced by law, in either the 
first, second, or third class, not exceeding eleven pounds in weight, 
or greater in size than seventy-two inches in girth and length com- 
bined, nor in form or kind likely to injure the person of any postal 
employee or damage the mail equipment or other mail matter, and 
not of a character perishable within a period reasonably required 
for transportation and delivery" (Sec. 8). These limits have been, 
and will be, raised from time to time. 

28 But see Bodley, " The Post Office Department as a Common 
Carrier and Bank," 18 American Law Review, 218 (1884). 

29 See Williams, passim. 



POWER OF CONGRESS TO ESTABLISH POSTOFFICES 3 I 

the forties the rise of the express companies, and their 
transportation of large packets and in some cases of matter 
which the postoffice undertook to carry, reduced federal 
revenues and seriously interfered with the efficiency and 
effectiveness of the government monopoly. ^^ But at any 
time the situation could have been remedied by congressional 
action. On the other hand, objection has been made to the 
assumption by Congress under the postoffice clause, of the 
functions of a common carrier, on the ground that they were 
not comprehended by the original grant.^^ 

Now, Congress clearly has the power to insure, upon the 
payment of extra fees, the safe transmission of letters or 
packets to the addressees, but the postal money order system 
cannot be justified upon any such theory. The act of May 
17, 1864^^ authorized the postmaster general to establish, 
" under such rules and regulations as he may find expedient 
and necessary, a uniform money order system at all post- 
offices which he may deem suitable therefor." The law 
fixed thirty dollars as the maximum amount for which an 
order could be issued, the purpose of the system being to 
afford " a cheap, immediate and safe agency for the transfer 
through the mails of small sums of money."^^ In practice 
the payee or party for whom the money was intended, was 
not named in the order, which was given to the applicant 
upon the payment of the sum specified and the proper fee, 
and his filling out a printed form of application. This was 
forwarded to the postmaster at the office upon which the 
order was drawn, and the latter, therefore, had the informa- 
tion necessary to detect fraud if any was attempted. The 

30 Reports of the Postmaster General, 1841-1845. 

31 " It might be easily shown, for instance, that the power over the 
mails is limited to the transmission of intelligence, and that Con- 
gress cannot, consistently with the nature and object of the power, 
extend it to the ordinary objects of transportation, without a mani- 
fest violation of the Constitution, and the assumption of a principle 
which would give the government control over the general trans- 
portation of the country, both by land and water." Speech of John 
C. Calhoun. 12 Debates of Congress, 1142. See also 18 American 
Law Review, 218. 

32 13 Stat L. 'j^i. 

33 Report of the Postmaster General, 1864, p. 24. 



32 THE POSTAL POWER OF CONGRESS 



34 



issue of these postal notes was discontinued in 1894, 
although their use has since been urged f^ under the money 
order system as it now obtains, the payee is named in the 
instrument.^* 

In the Senate there was no debate other than on the 
administrative features of the law of 1864;^^ the constitu- 
tional question was not discussed. Some doubt, however, 
has since been expressed as to the power of Congress to 
establish a system of postal savings banks. These were, 
according to the title of the act, to hold " savings at interest 
with the security of the government for repayment thereof, 
and for other purposes." It was provided that available 
funds should be used in the redemption of United States 
bonds, and the act recited, " that the faith of the United 
States is solemnly pledged to the payment of the deposits 
made in the postal savings depository offices, with accrued 
interest thereof, as herein provided." This section would 
seem to imply that the receiving of deposits could be con- 
sidered as borrowing money on the credit of the United 
States. 

Objection, upon constitutional grounds, was, however, 
made by Mr. Moon of Tennessee, in a minority report which 
he presented to the House of Representatives.^^ He argued 
that no express authority could be found in the Constitution, 
and that ''the depository is not a bank within the legal 
meaning of that word ; nor do the trustees created by this 
act collect money (deposits) from the people for govern- 
mental purposes, but simply become federal trustees of 
private funds for loan or reinvestment at interest." 

It would seem, however, that the provision for redeeming 
United States bonds and the general tenor of the law, could, 

84 28 Stat. L. 30. 

35 See Reports of the Postmaster General, 1908-1911. 

36 Postal Laws and Regulations of 1913, Title VIII, " Money Or- 
der System," p. 529 ff. 

37 Congressional Globe, 38th Cong., ist Sess., pp. 1694, 1771, 1861. 

38 Act of June 25, 1910 ; 36 Stat. L. 814. A system had been rec- 
ommended by postmasters general in 1871-1873, 1880-1882, 1887- 
1890, 1907-1909. See 6ist Cong., 2d Sess., House Rept. No. 1445, 
and for Mr. Moon's argument, ibid., Part 2. 



POWER OF CONGRESS TO ESTABLISH POSTOFFICES 33 

without violence, enable the system to be looked upon as 
established for the purpose of borrowing money on the credit 
of the United States, or of obviating in some degree the 
issuance of emergency currency in financial crises through 
the deposit with the government, and subsequent circulation, 
of large sums of money which has hitherto been hoarded. 
But apart from this, while extensions of the postal func- 
tion to include banking facilities for the receipt of deposits 
and the issuance of money orders, were certainly not con- 
templated by the framers of the Constitution, and are not 
connected with the transmission of intelligence, they are, 
from foreign precedent, logical parts of the modern postal 
power. It is extremely difficult, moreover, for a citizen to 
show an amount of interest sufficient to bring before the 
courts the constitutionality of such non-essential functions 
of the government.^® And especially is this the case when 
their exercise does not entail taxation, but actually results in 
increased revenues, and interferes slightly if at all, with the 
exercise of the same functions by private undertakings. 
Finally, it should be remembered that the powers granted 
in the postal clause " are not confined to the instrumentali- 
ties of commerce, or the postal service known or in use 
when the Constitution was adopted, but they keep pace with 
the progress of the country, and adapt themselves to the 
new developments of time and circumstances."*^ Accord- 
ing to this view there is no constitutional doubt as to the 
right of the postoffice to engage in the banking activities 
thus far attempted. 

Collectimst Activities. — The primary purpose of the postal 
power is, of course, the transmission of intelligence, but with 
vast equipment and organization once in existence, it is a 
comparatively simple matter for the government to increase 
in number and in kind, the services which the postoffice 
may perform for its patrons. In New Zealand postoffices, 

*» Wilson V. Shaw, 204 U. S. 24 (1907). 

*0Pensacola Telegraph Co. v. Western Union Telegraph Co., g6 
U. S. I (1877). 



34 THE POSTAL POWER OF CONGRESS 

for example, a person can buy stamps, mail a letter or 
parcel, send a telegram, deposit money, collect a pension, 
report births and deaths, and insure his life.*^ 

It is due, in part, at least, to the federal system of govern- 
ment in the United States that Congress has been reluctant 
to increase the functions of the postoffice. But the money 
order system and postal savings banks have now been estab- 
lished, and it seems inevitable that the telegraph and tele- 
phone systems of the country will shortly be nationalized.*^ 
So also rural free delivery has caused congressional aid to 
be given to the good roads movement and several schemes 
have been proposed for extensive road construction under 
federal auspices.*^ 

The inauguration of the parcel post, which in fact has 
made the postoffice a common carrier, has led to serious 
efforts on the part of the government towards an adequate 
appreciation, by possible users, of the advantages of the new 
facilities, and a campaign of education is carried on, not so 
much with a view of increasing revenues, as of fostering 
the "producer to consumer" movement, particularly in 
farm products. Congress authorized the Secretary of Agri- 
culture "to acquire and diffuse among the people of the 
United States useful information on subjects connected with 
the marketing and distributing of farm products " and under 
this authority the Office of Markets was established on May 
1 6, 1 91 3.** It employs specialists in marketing various com- 
modities, and issues bulletins on the facilities for, and ad- 
vantages of, shipping different products by parcel post. 
Agents are sent to appropriate sections of the country to do 
personal work and local offices are active in collecting lists 
of the names of farmers and others who have produce to 

41 Davies, The Collectivist State in the Making, p. 39. 

42 Below, Chapter VI. 

43 Below, p. 80 ff. See also " The States and their Roads," N. Y. 
Nation, August 20, 1914, and Bourne, " Practical Plan to Spend 
$3,000,000 for Public Roads," N. Y. Times, May 11, 1913. 

44 Annual Reports of the Department of Agriculture, 1914 (Re- 
port of the Chief of the Office of Markets). 



POWER OF CONGRESS TO ESTABLISH POSTOFFICES 35 

sell, and printing and distributing these lists to postal patrons 
who may become purchasers.*^ 

It is proposed, furthermore, to use postoffices as employ- 
ment bureaus, and a bill, the adoption of which was strongly 
urged on the Sixty-third Congress by Senator Clapp, pro- 
vided that the postmaster general establish, "under such 
rules and regulations as he may prescribe, mutual employ- 
ment exchanges at all presidential postoffices, where registers 
may be kept of any and all persons who make application to 
be registered, as either seeking employment, or seeking em- 
ployees, which information may also be exchanged between 
such offices, all in the interest of the proper and timely dis- 
tribution of labor throughout the country."*® This service 
would be made self-sustaining through the sale of registra- 
tion stamps. The bill failed of passage. 

But pending action of this character, or the adoption by 
Congress of legislation designed to lessen unem.ployment 
without using the postoffice, the Secretary of Labor and 
the Postmaster General, cooperated in formulating an ar- 
rangement by which " information relating to the distribu- 
tion of labor could be widely scattered and posted under the 
auspices of the United States Government. 

"The plan," Secretary Wilson goes on to explain, "con- 
sists of dated bulletins sent out by the Department of Labor 
to postmasters throughout the coimtry, by whom they are 
posted on the bulletin boards so that every postoffice patron, 
— and this means every man, woman and child, — can easily 
refer to the information. These are known as ' Bulletins of 
Opportunities.' They are replaced with others from time 
to time as necessary, and suitable notice is given when they 
become inoperative. This plan has received the indorsement 
of the various state authorities, who have been, and are^ 
cooperating with the Department of Labor in scattering in- 

*5 Report of the Postmaster General, 1914, p. 8 ff. See also U. S. 
Department of Agriculture, Farmers' Bulletins, inter alia, Nos. 594 
and 611, and The National Parcel Post News (Washington), Octo- 
ber 7, 1914, and weekly thereafter. 

*6 S. 5180, 63d Cong., 2d Sess. (April 8, 1914). 



36 THE POSTAL POWER OF CONGRESS 

formation about labor opportunities and conditions in their 
respective states."*'' 

In collectivist facilities, either at present in existence or 
very seriously urged, the American postoffice is, then, not 
far behind that of New Zealand. It affords a significant 
illustration of the tendency of the federal government 
gradually to engage in many activities, properly national, 
which are too big for the states, and too expensive or 
paternalistic for private undertakings. The aim is that the 
maximum benefit may inure to the citizen. 

Postal Crimes. — The postal power, as Marshall pointed 
out in McCulloch v. Maryland,*^ " is executed by the single 
act of making the establishment. But from this has been 
inferred the power and duty of carrying the mail along the 
postroad, from one postoffice to another. And from this 
implied power has again been inferred the right to punish 
those who steal letters from the postoffice, or rob the mail. 
It may be said with some plausibility that the right to carry 
the mail and to punish those who rob it is not indispensably 
necessary to the establishment of a postoffice and postroad. 
The right is indeed essential to the beneficial exercise of 
the power, but not indispensably necessary to its existence." 

Such a power was asserted even before the adoption of 
the Constitution; the Ordinance of 1782 meticulously for- 
bade the employees to delay or rob the mails, under penalty 
of fines " to be used for and recovered in an action of debt " 
by the treasurer of the United States; a supplementary 
ordinance attempted to establish a monopoly, and it was 
made lawful for the postmaster general " to allow and pay 
to any informer, one moiety of the penalties which may be 
recovered upon his information, for offences, against the 
fourth and fifth clauses of the above mentioned ordinance."** 

The Act of February 20, 1792^" greatly extended these 

47 Wilson, " Uncle Sam ; Employment Agent," The Outlook, Feb- 
ruary 17, 1915, p. 395. 
484 Wheat. 316 (1819). 
4* See above, p. 19. 
50 I Stat. L. 232. 



POWER OF CONGRESS TO ESTABLISH POSTOFFICES 37 

criminal provisions, infraction of which was to be punished 
in the federal courts. Some of the penalties provided for 
the more serious offences now seem severe, but they are 
evidence of how important Congress deemed the inviolability 
of the mails. By this act it was provided, "that if any 
person shall obstruct or retard the passage of the mail, or 
of any horse or carriage carrying the same, he shall, upon 
conviction, for every offence pay a fine not exceeding one 
hundred dollars. And if any ferryman shall, by wilful 
negligence, or refusal to transport the mail across any ferry, 
delay the same, he shall forfeit and pay, for each half hour 
that the same shall be so delayed, a sum not exceeding ten 
dollars." A fine and disqualification for holding any office 
under the United States were the penalties inflicted " if any 
deputy postmaster or other person authorized by the post- 
master general to receive the postage of letters, shall fraudu- 
lently demand or receive any rate of postage, or any gratuity 
or reward, other than is provided by this act for the postage 
of letters or packets." Vessels were forbidden to enter any 
port of the United States and break bulk until their letters 
had been delivered to the postmaster, and the officer of the 
port could require an oath of delivery. Exception, how- 
ever, was made in the case of letters to the owner or 
consignee, and when the vessel had letters directed to another 
port. 

In an effort to make the postal system efficient by insur- 
ing it against private competition and the consequent diminu- 
tion of revenues, there was a provision (still in force, 
although modified), declaring the federal establishment a 
monopoly and making any infringement punishable by a 
fine. The act recited "that if any person, other than the 
postmaster general or his deputies, or persons by them em- 
ployed, shall take up, receive, order, dispatch, carry, convey, 
or deliver, any letter or letters, packet or packets, other than 
newspapers, for hire or reward, or shall be concerned in 
setting up any foot or horse post, wagon or other carriage, 
by or in which any letter or packet shall be carried for hire. 



38 THE POSTAL POWER OF CONGRESS 

on any established postroad, or any packet or other vessel 
or boat, or any conveyance whatever, whereby the revenue 
of the general postoffice may be injured, every person so 
offending shall forfeit for every such offence, the sum of 
two hundred dollars.^^ Provided, that it shall and may be 
lawful for every person to send letters or packets by special 
messenger." 

Fine and imprisonment were the punishments for unlaw- 
fully delaying, embezzling, secreting, or destroying any 
letter or package not containing money ; but if the letter or 
packet contained any kind of money, negotiable paper, 
bonds, or warrants, the punishment upon conviction was 
death. The carrier was forbidden to desert the mail before 
he reached his destination; robbing any carrier,^^ ^j^g mail, 
or the postoffice was punishable by death. Ten dollars was 
the penalty for an unlawful use of the franking privilege. 
One half of all the fines recovered went to the persons in- 
forming and prosecuting for the offences, and in 1797 it was 
provided that accomplices in the commission of postal crimes 
should be subject to the same punishment as the principals.^^ 
In 181 o whipping was abolished,^* but the death penalty for 
a second robbery, or for putting the carrier's life in jeopardy, 
was continued. This is strong evidence of congressional 
insistence upon the sanctity of the mails, since in 1825 only 
fine and imprisonment were the punishment for assaults on 
the high seas, or within admiralty jurisdiction with intent to 
commit a felony. ^^ 

Upon the basis of these early regulations. Congress has 
passed many laws calculated to prevent interference with the 
mails or their misuse; most of the original crimes are still 

51 Changed to $50 by the act of May 8, 1794 ; i Stat. L. 354. 

52 Changed by the act of March 2, 1799 (i Stat. L. 733) to forty 
lashes and ten years imprisonment for the first offense, but death 
for the second offense, or if the carrier was wounded or his life 
put in jeopardy. In 1794 (i Stat. L. 354) the penalty for stealing 
mail or letters from the postoffice was changed to fine and impris- 
onment and in 1799 to thirty lashes and two years imprisonment. 

53 Act of March 3, 1797; i Stat. L. 509. 
5*2 Stat. L. 592. 

55 Act of March 3, 1825 ; 4 Stat. L. 122. 



POWER OF CONGRESS TO ESTABLISH POSTOFFICES 39 

forbidden and the changes made have been in detail rather 
than character, with one important exception : there has 
gradually been built up an Index Expurgatorius of articles 
which it is unlawful to deposit in, or to take from, the mails 
for purposes of circulation. But with this exception, the 
penal laws do not differ radically from those of a century 
ago. 

Nearly all " Offenses against the Postal Service " have 
been brought together as Chapter 8 of the Criminal Code of 
the United States.^^ It is now unlawful to conduct, or 
profess to conduct, a postoffice without authority; to carry 
the mail otherwise than according to law ; to set up private 
expresses ; to transport persons unlawfully conveying the 
mail ; to send letters by private express or for carriers to 
convey them over regular post routes otherwise than in the 
mail ; to wear the uniform of a carrier without authority or 
to pose as a carrier of the United States mail when such is 
not in fact the case. Injuring mail bags, stealing postoffice 
property, stealing or forcing mail locks or keys, breaking 
into or entering a postoffice, unlawfully entering a postal 
car, stealing, secreting and embezzling mail matter or its 
contents,^^ assaulting a carrier with intent to rob and robbing 
the mail; injuring letter boxes or mail matter; "knowingly 
and wilfully " obstructing or retarding the passage of the 
mail, all are crimes punishable in the federal courts. 

It is an offence for any employee of the service to detain, 
destroy or embezzle a letter or newspaper ; for a ferryman to 
" delay the passage of the mail by willful neglect or refusal 
to transport " ; for the master of a vessel to fail to deposit 
with the postoffice all mail from abroad or to break bulk 
before making such delivery. No one may sell or use a 

5635 Stat. L. 1088, 1 123. 

5T " Where a letter carrier left a letter in the hall of the residence 
of the person to whom it was addressed, and the defendant opened 
it with intent to pry into the business and secrets of the owner " it 
was held to be a violation of the provision against taking mail before 
it reached the addressee, and the principle was laid down that the 
protection extends until the letters reach their destination by actual 
delivery to the persons entitled to receive them. U. S. v. McCready, 
II Fed. Rep. 225 (1882), citing U. S. v. Hall, 98 U. S. 343 (1878). 



40 THE POSTAL POWER OF CONGRESS 

cancelled stamp or remove the cancellation marks; postal 
employees, moreover, are prohibited from making false re- 
turns to increase their compensation, from unlawfully col- 
lecting postage, from failing to account for postage or to 
cancel stamps, and from issuing a money order without 
payment. 

There are also, as I have indicated, a number of laws 
denying the use of the mails for the transmission of obscene 
or libellous writings, lottery tickets and advertisements, 
fraudulent matter, poisons, intoxicating liquors, explosives 
and similar articles which come under the ban of the police 
power. Furthermore, the complexity of political life and 
more numerous administrative problems in the service, have 
given rise to a separate class of offences ; thus it is criminal 
for a member of Congress to be interested in a public con- 
tract, or a postal employee in a mail contract ; or for an 
employee to make or receive a political contribution. There 
is, finally, the so-called " newspaper publicity law," the con- 
cluding paragraph of which compels, under penalty of a fine, 
the marking as an advertisement of all reading matter for 
the publication of which a valuable consideration is re- 
ceived.^^ 

Marshall's dictum in McCulloch v. Maryland has re- 
mained unquestioned ; it has never been doubted that Con- 
gress has the power to punish offences against the mails 
themselves, or neglect of duty by postal employees. The 
constitutionality of such legislation has never been attacked ; 
the courts have only been called upon to decide technical 
points. For example, the word '' rob " is used in its com- 
mon law sense; jeopardy "means a well-grounded appre- 
hension of danger to life, in case of refusal or resistance " ; 
pistols are dangerous weapons v\^ithin the meaning of the 
law ; and " all persons present at the commission of a crime, 
consenting thereto, aiding, assisting, or abetting therein, or 
in doing any act which is a constituent of the offence, are 
principals. "^^ The detention of mail by one employed in 

58 Act of August 24, 1912 ; 37 Stat. L. 554. See below, pp. 121, 164. 

59 U. S. V. Wilson, I Baldwin (U. S. C C), 78 (1830). 



POWER OF CONGRESS TO ESTABLISH POSTOFFICES 4 1 

the postoffice, refers to a letter or packet before it reaches 
its destination ; the taking must be clandestine and the intent 
criminal.*® An indictment for advising a carrier to rob the 
mail must aver that the offence has been committed ;^^ a 
sword in the hand, although not drawn, is a dangerous 
weapon; a pistol is presumed to be charged. ^^ These are 
some of the questions that the courts have been called upon 
to determine. 

Nor has there been any dispute as to the power of Con- 
gress to establish a monopoly by forbidding private postal 
enterprises.®^ As was pointed out in an early case, " No 
government has ever organized a system of posts without 
securing to itself, to some extent, a monopoly of the carriage 
^letters and mailable packets. The policy of such an ex- 
clusive system is a subject of legislative, not of judicial 
inquiry. But the monopoly of the government is an op- 
tional, not an essential part of its postal system. The mere 
existence of a postal department of the government is not an 
establishment of the monopoly."^* Thus questions have 
arisen as to the extent and scope of the original provision 
and the amendments that have been made to it. 

6<*U. S. V. Pearce, 2 McLean's C. C. R. 14 (1839). 

61 U. S. V. Mills, 7 Peters, 138 (1833). 

62 U. S. V. Wood, 3 Wash. C. C R. 440 (1818). See also U. S. v. 
Hardyman, 13 Peters, 176 (1839). 

63 U. S. V. Thompson, 28 Fed. Cas. 97 (1846). But see "The 
Postoffice Monopoly," 11 Law Reporter, 384 (January, 1849). In 
this paper the writer argues that the idea of a monopoly is not inci- 
dental to the postal grant and that the framers did not intend to 
make the postoffice a source of general revenue. The Constitution 
enumerates methods of raising funds and Expressio unius, exclusio 
alterins. Mr. Paterson's plan as proposed to the Convention named 
the postoffice as a source of revenue, but his language was rejected. 
May the same, asks this writer, be said of his theory? (p. 396). 
And if the federal government has no such power it has no right 
of espionage and it may not say of what " mailable matter " con- 
sists (p. 397). 

64 U. S. V. Kochersperger, 26 Fed. Cas. 803 (i860). "In a royal 
grant of the office of postmaster to foreign parts (July 19, 1632, 
XIX Rymer's Foedera, 385) the monopoly is justified by the con- 
sideration * how much it imports to the state of the King and this 
realm that the secrets thereof be not disclosed to foreign nations, 
which cannot be prevented if a promiscuous use of transmitting or 
taking up of foreign letters and packets should be suffered.' " 
Freund, Police Power, p. 688, n. 



42 THE POSTAL POWER OF CONGRESS 

/ In 1834, for example, New Orleans citizens complained of 
slow mails, and proposed a plan of forming a private asso- 
ciation for a daily express line to New York. But the pro- 
ject being referred to Chancellor Kent for his opinion, he 
advised that " the objects of the association cannot be carried 
into effect, in the way proposed, without violating the post- 
office law."^^ In 1844 the Attorney General gave an opinion 
that letters carried over mail routes by private carriers 
could not be charged with postage, nor could the letters be 
detained ; the only available course was " to enforce the 
penalties to which all unauthorized carriers of letters on the 
mail routes are by law subjected."^^ 

As for the general interpretation of the statute, a federal 
circuit court, in holding that it was not unlawful to carry 
an unstamped letter of advice concerning money shipped by 

J express, said : " These provisions of the postoffice law, being 
in derogation of common right, must be construed strictly, 
and in the absence of clear and explicit language, forbidding 
the carriage of a letter, under the circumstances indicated, 
we must hold that the right to do so is not interfered with."®^ 
The Supreme Court of the United States, however, had 
previously declared that the act was undoubtedly a revenue 
law,®^ although "not drawn with all the precision and ex- 
plicitness desirable in penal legislation." And the rule of 
interpretation as laid down by the Department of Justice 
was that the acts "are not subjected to the narrow rules 
formerly applied in the construction of penal statutes. . . . 
In our courts, such acts receive the same construction that 

65 Act of March 2, 1827; 4 Stat. L. 238; Niles' Register, vol. xlvii, 
p. 120. Until 1827 newspapers could be carried privately, but by the 
act of this year an express exception hitherto existing was omitted. 
At the present time, of course, they may be carried outside of the 
mail. See Postal Laws and Regulations of 1913, p. 605. 

664 Opinions of the Attorneys General, 349 (1844). If a pas- 
senger takes the letters without the knowledge of the carrier, the 
latter is not liable and no penalty is incurred by the person sending 
the letters ; but if the practice is known by public advertisement the 
carrier will be liable and also the person employing agents to carry 
his mail. U. S. v. Hall, 26 Fed. Gas. 75 (1844). 

67 U. S. V. U. S. Express Go., 5 Biss. 91 (1869). 

68 U. S. V. Bromley, 12 How. 88 (1851). See also 4 Ops. 159 
(1843). 



POWER OF CONGRESS TO ESTABLISH POSTOFFICES 43 

would be put upon any other remedial legislation ; that is, a 
fair, sensible, practical interpretation, without reference to 
any merely technical rule in favor of the accused."®^ 

The question arose in 1858 as to the legality of carrying 
letters to and from the postoffice in a town where a public 
carrier had not been appointed. The attorney general was 
of the opinion that the act forbade this. "A person," he 
said, " who intends to make the carrying of letters his 
regular business, or part of his business, and to do it 
periodically for hire, in opposition to the public carrier, is 
legally incapable of receiving authority to take letters out of 
the postoffice for that purpose."^** But when the question 
went to the courts, a contrary position was taken. The Act 
of March 3, 1851^^ authorized the postmaster general "to 
establish postroutes within the cities or towns." The court 
held that the word " postroutes " was not synonymous with 
"postroads" used in that portion of the act of 1827 which 
made criminal attempts to compete with the federal govern- 
ment in carrying the mail. Hence private letter carriers 
violated no law. This decision,^^ however, was overruled 
when Congress extended^^ the provisions of the Act of 1827 
to all postroutes already, or thereafter established, and in 

1872'^* declared letter carrier routes within cities "post- 
roads."75 

69 4 ops. 162. " By the now settled doctrine of this court " reve- 
nue statutes are " not to be construed like penal laws generally, 
strictly in favor of the defendant ; but they are to be fairly and rea- 
sonably construed, so as to carry out the intention of the legislature." 
U. S. V. Stowell, 133 U. S. I (1890). 

"^^9 Ops. 161 (1858) ; but see U. S. v. Kochersperger, above. 

71 9 Stat. L. 591. 

7^2 U. S. V. Kochersperger, above. While resting its decision on a 
literal interpretation of the statute, the court intimated that the public 
streets of a municipality were different from highways, and ex- 
pressed doubt as to whether they could " be established by Congress 
as postroads for any other purpose than the carriage of the mail." 
See below, p. 151. 

73 Act of March 2, 1861 ; 12 Stat. L. 205. 

74 Act of June 8, 1872; 17 Stat. L. 309. 

75Blackham v. Gresham, 16 Fed. Rep. 609 (1883). In 1872, citi- 
zens of Davenport, Iowa, were permitted to employ a private dis- 
patch company to deliver within the city limits mail upon which no 
U. S. postage had been paid ; this was allowed because the streets of 
the city had not been made postroutes. 14 Ops. 152. 



44 THE POSTAL POWER OF CONGRESS 

Thus when an express company had a number of mes- 
sengers to collect letters daily from certain customers who 
paid with private stamps, previously sold, the letters being 
taken to an office, sorted, and dispatched to the addressees, 
the court held that these deliveries could not be deemed " by 
messenger employed for the particular occasion only," but 
were deliveries " by regular trips and at stated periods," and 
the defendant was therefore liable.'^® 

There has always been the exception that the carrier is 
permitted to transport, otherwise than in the mail, letters or 
packets relating " to some part of the cargo of such steam- 
boat or other vessel, to the current business of the carrier, 
or to some article " carried at the same time.*^^ Under this 
inhibition it is not lawful for a railroad company to carry 
letters from one connecting line to another line, when the 
letters relate to through business. The letters must be sent 
by, or addressed to, the carrying company. ^^ But in 191 2 
Attorney General Wickersham decided that a railroad might 
carry over its lines, not in the mail, letters written by the 
secretary of a relief association (which was composed of the 
employees of the railroad) to the railroad company, but not 
letters from the officers of the association to its members. '^^ 

In 1 91 5 the Supreme Court was called upon to construe 
the statute and held within the " current business " exception 
"letters of a telegraph superintendent, jointly appointed and 
paid by a railway company, and a telegraph company, which 
were written to a railway station agent and telegraph 
operator with the purpose of promoting the efficient and 
successful operation of the telegraph business in the success 
of which the railway company, under the contract with the 
telegraph company, has a financial interest." The Court 
refused, however, to consider whether the statute is " penal 



76 U. S. V. Easson, 18 Fed. Rep. 590 (1883). 

'^'^ Rev. Stat. Sec. 3985 ; the italicised words were added by the Act of 
March 4, 1909; 35 Stat. L. 1124. See 21 Ops. 394 (1896) ; 28 Ops. 
537 (1910), and 42 Cong. Rec, 973 ff- 

78 21 Ops. 394. 

7929 Ops. 418 (1912). 



POWER OF CONGRESS TO ESTABLISH POSTOFFICES 45 

or remedial, or whether it is to have a strict or a Hberal 
interpretation."^'' 

Another class of offences has arisen out of the section 
providing punishment for "whoever shall knowingly and 
wilfully obstruct or retard the passage of the mail," or any 
conveyance by which it is being carried. Wide extension of 
federal authority and effective federal supremacy have been 
enforced under this provision, it having been held that a 
defendant toll gate keeper cannot plead the justification of 
a state law for stopping a carrier of the mail.^^ It has been 
decided, also, that mail matter in the postoffice, ready for 
delivery, is '' obstructed " within the meaning of the 
statute by an unprovoked assault on the postmaster. " The 
law presumes that the defendant intended by his act the 
result which followed and the offense is complete." An act, 
if unlawful, resulting in an obstruction, is per se done know- 
ingly and wilfully.^2 

Preventing a mail train from running as made up, even 
though one is willing that the mail car shall go on, is an 
obstruction within the meaning of the statute,^^ and where 
the regular passenger trains of a railroad company have 
been selected as the ones to carry the mail, the failure of the 
railroad to run other trains for that purpose is not neces- 
sarily unlawful.^* It is no defense, however, that the ob- 
struction was effected merely by leaving the employment, 

sou. S. V. Erie R. Co., 235 U. S. 513 (1915). It was held that the 
setting up of a post by a railroad car or steamboat was not within 
the act of 1827. " Since the passing of the postoffice laws new modes 
of conveyance have been established and a condition of things arisen 
not then known or contemplated. And the question is, whether new 
acts in contravention of the general spirit and policy of the laws, 
can be brought within any of its prohibitions, and subjected to a 
specific penalty. However willing the court might be to attain that 
end, it cannot strain or force the language used beyond its fair and 
usual meaning." U. S. v. Kimball, 26 Fed. Cas. 782 (1844)7 

«iU. S. v. Sears, 55 Fed. Rep. 268 (1893). 

82 U. S. v. Claypool, 14 Fed. Rep. 127 (1882). 

*'U. S. v. Clark, 25 Fed. Cas. 443 (1877) ; see also In Re Grand 
Jury, 62 Fed. Rep. 840 (1894). 

«*In Re Grand Jury, 62 Fed. Rep. 834 (1894). 



46 THE POSTAL POWER OF CONGRESS 

" where the motive of quitting was to retard the mails, and 
had nothing to do with the terms of employment. "^^ 

These doctrines were given their widest scope in the Debs 
cases. It was held that an indictment for obstructing the 
mails need not set out that the act was done feloniously, 
since the crime was not a felony at the common law; nor, 
furthermore, is it necessary to show knowledge that the 
mails would be interfered with. "The laws make all rail- 
ways postroutes of the United States," said the court, " and 
it is within the range of everyone's knowledge that a large 
proportion of the passenger trains on these roads carry the 
mails." Finally where the indictment is for conspiracy to 
obstruct the mails, and overt acts in pursuance thereof, " it 
is not restricted to a single overt act, since the gist of the 
offense is conspiracy, which is a single offense."^^ 

The authority of Congress may, moreover, be enforced 
otherwise than by prosecution for violations of this provi- 
sion. " The entire strength of the nation," said the Supreme 
Court, " may be used to enforce in any part of the land the 
full and free exercise of all national powers and the security 
of all rights entrusted by the Constitution to its care. The 
strong arm of the national government may be put forth to 
brush away all obstructions to the freedom of interstate com- 
merce or the transportation of the mails. If the emergency 
arises the army of the Nation, and all its militia, are at the 
service of the Nation to compel obedience to its laws." And 
the Supreme Court went on to declare that " it is equally 
within its [the federal government's] competency to appeal 
to the civil courts for an inquiry and determination as to the 
existence and character of any alleged obstructions, and if 
such are found to exist, or threaten to occur, to invoke the 
powers of those courts to remove or restrain such obstruc- 
tions ; that the jurisdiction of the courts to interfere in such 
matters by injunction is one recognized from ancient times 
and by indubitable authority; . . . that the proceeding by 

85 Thomas v. Cincinnati, etc., Ry. Co., ^2 Fed. Rep. 803 (1894); 
but see U. S. v. Stevens, 27 Fed. Cas. 1312 (1877). 

86 U. S. V. Debs, 65 Fed. Rep. 210 (1895). 



POWER OF CONGRESS TO ESTABLISH POSTOFFICES 4/ 

injunction is of a civil character and may be enforced by- 
proceedings in contempt; that such proceedings are not in 
execution of the criminal laws of the land ; that the penalty 
for a violation of the injunction is no substitute for and no 
defence to a prosecution for any criminal offences com- 
mitted in the course of such violation. "^^ 

When we turn, however, to the power of Congress to 
exclude from the mails, a different problem is presented. 
As has been pointed out, early in the history of the postoffice, 
mail matter was classified according to its character and 
different rates of postage were charged. In 1799 the Post- 
master General sent a letter to Congress complaining of 
" large and inconvenient packages " and the Act of 1810 
provided that "no postmaster shall be obliged to receive, 
to be conveyed by mail, any packet which shall weigh more 
than three pounds."^® Congress, therefore, very early exer- 
cised the right of determining what articles should be mail- 
able and the conditions upon which they should be carried. 

These exclusions were made to protect the mails. Ob- 
jection was made to the "inconvenient packages" on the 
ground that the transit was retarded and smaller articles were 
injured. Such restrictions have been maintained, the post- 
office regulations now prescribing the limits, both of weight 
and size. Congress has, moreover, on the same ground, 
conditionally excluded a variety of articles, such as poisons, 
explosives, inflammable materials, infernal machines, dis- 
ease germs, and all compositions liable to hurt anyone or 
injure the mails. It is provided, however, that the post- 
master general "may permit the transmission in the mails 
under such rules and regulations as he shall prescribe 
as to preparation and packing" of any of these articles, 
"not outwardly or of their own force dangerous or in- 
jurious to life, health and property." Intoxicating liquors 
are absolutely excluded. Any violations of the statutory 

S7 1n Re Debs, 158 U. S. 564 (1895). See also Fairlie, National 
Administration, p. 38; Cleveland, The Government in the Chicago 
Strike, passim, and 23 McClure's Magazine, p. 227. 

^^2 Stat L. 592. 



48 THE POSTAL POWER OF CONGRESS 

provisions or of regulations made by the postmaster general 
in pursuance of the authority given him, are punishable by 
fine and imprisonment.^^ 

The absolute exclusion of intoxicants, however, cannot be 
justified upon the same principles as the conditional ex- 
clusions, since the danger to the mails can only arise from 
the fact that they are liquids. This distinction leads 
naturally to another class of articles which are denied postal 
facilities on account of the effect they will have on recipients. 
In this class is all printed or written matter which is obscene, 
libellous and indecent, or which relates to lotteries and 
fraudulent schemes. ^^ 

The first inhibition was made by Congress in the Act of 
March 3, 1865, and by the Act of June 8, 1872, codifying 
previous laws and organizing the postoffice on its present 
basis, the use of the mails was denied to obscene matter, 
cards " upon which scurrilous epithets may have been writ- 
ten or printed, or disloyal devices printed or engraved " and 
"letters or circulars concerning illegal lotteries."*^ It has 
since been made criminal to take obscene or scurrilous 
matter from the mails for purposes of circulation.®* 

Before the Supreme Court of the United States, the 
power of Congress to exclude obscene and indecent matter 
from the mails^^ has never been seriously questioned, and the 
points presented for determination, largely to the lower 
federal courts, have not been as to the constitutional author- 

^^35 Stat L. 1 131. See Postal Laws and Regulations of 1913, 
p. 255. 

90 Publications which violate copyrights granted by the United 
States cannot be mailed. In this case the postal power is used to 
make more effectual legislation which it was competent for Congress 
to enact See Postal Laws and Regulations of 1913, p. 264. 

91 13 Stat. L. 507; 17 Stat L. 283, 302. 

92 Postal Laws and Regulations of 1913, p. 264. 

93 As to when one, who does not personally mail non-raailable 
matter, may be regarded as causing it to be deposited in the mails, 
see Demolli v. U. S., 144 Fed. Rep. 363 (1906) ; 6 L. R. A. n. s. 424, 
and note. Importation into the United States of obscene matter or 
articles of an immoral nature was forbidden by the act of March 2, 
1857, II Stat L. 168. 



POWER OF CONGRESS TO ESTABLISH POSTOFFICES 49 

ity of Congress.^* In 1890, the Supreme Court held that 
under the Act of July 12, 1876 it was not an offence to 
deposit in the mails an obscene letter, enclosed in an en- 
velope, and refused to consider the amendment made in 1888 
which had extended the inhibition to sealed matter, closed 
to inspection.^^ But in 1895, the Court determined that 
while the possession of obscene pictures is not forbidden, it 
is an offence to deposit in the mails a letter, not in itself ob- 
jectionable, but conveying information as to where, and of 
whom, such pictures could be obtained.^^ And the next 
year the Court refused to accept the defence that the ob- 
scene matter was mailed in reply to decoy letters by a gov- 
ernment detective.^^ 

It was held, moreover, that " the words ' obscene,' ' lewd ' 
and 'lascivious,' as used in the statute, signify that form of 
immorality which has relation to sexual impurity, and have 
the same meaning as is given them at common law in 
prosecutions for obscene libel. As the statute is highly 
penal, it should not be held to embrace language unless it is 
fairly within its letter and spirit."^^ The penal code of 

9* " For more than thirty years, not only has the transmission of 
obscene matter been prohibited, but it has been made a crime, pun- 
ishable by fine or imprisonment, for a person to deposit such matter 
in the mails. The constitutionality of this law, we believe, has never 
been attacked." Public Clearing House v. Coyne, 194 U. S. 497 
(1904), but see Dunlop v. U. S., 165 U. S. 486 (1897), and U. S. v. 
Popper, 98 Fed. Rep. 423 (1899). 

*5U. S. V. Chase, 135 U. S. 255 (1890). The statute applied to 
any " book, pamphlet, picture, writing, print, or other publication " 
of an obscene character. R. S. sec. 3893. The prosecution in the 
Chase case arose before the act of September 26, 1888, which the 
Court refused to consider, and which extended the inhibition to 
sealed letters. 25 Stat. L. 496. 

96 Grimm v. U. S., 156 U. S. 604 (1895). The Chase case was 
followed by U. S. v. Wilson, 58 Fed. Rep. 768 (1893), which held 
that even under the act of 1888 " or other publication " were qualify- 
ing words which excluded letters, and by U. S. v. Warner, 59 Fed. Rep. 
355 (1894) ; contra, U. S. v. Nathan, 61 Fed. Rep. 936 (1894), and 
U. S. v. Ling, 61 Fed. Rep. looi (1894). All doubt was removed by 
Grimm v. U. S. 

97 Andrews v. U. S.. 162 U. S. 420 (1896). 

9s Swearingen v. U. S., 161 U. S. 446 (1896), Justices Harlan, Gray, 
Brown and White dissenting, followed in U. S. v. Moore, 104 Fed. 
Rep. 78 (1900) ; U. S. v. O'Donnell. 165 Fed. Rep. 218 (1908) ; U. S. 
v. Benedict, 165 Fed. Rep. 221 (1908), and Knowles v. U. S., 170 Fed. 
Rep. 409 (1909). 



50 THE POSTAL POWER OF CONGRESS 

1909 extended the language to exclude " every filthy " book, 
pamphlet, picture or letter, and this in effect overruled the 
Swearingen case.®^ 

There have been questions, also, as to the requirements 
for a valid indictment, which, it has been held, need not set 
out the objectionable matter, but must inform the accused 
of the nature of the charge against him.^°^ The courts have 
varied as to whether the test of obscenity is that laid down 
by Lord Cockburn : Is the tendency of the matter " to 
deprave and corrupt those whose minds are open to such 
immoral influences and into whose hands a publication of 
this sort would fall " ?^^^ or the dictionary meaning as "of- 
fensive to chastity, decency or delicacy." The question as to 
what is obscene, however, is for the jury to determine.^^^ 

Congress has also denied postal facilities to "all matter 
otherwise mailable by law, upon the envelope or outside 
cover or wrapper of which, or any postal card upon which 
any delineations, epithets, terms, or language of an indecent, 
lewd . . . libelous, scurrilous, defamatory, or threatening 
character, or calculated by the terms or manner or style of 
display and obviously intended to reflect injuriously upon 
the character or conduct of another, may be written or 
printed or otherwise impressed or apparent." This prohibi- 
tion has been extended to include a postal card demanding 
the payment of a debt and stating that "if it is not paid at 

once we shall place the same with our lawyer for col- 
lection."^03 

It has been held, however, that "outside cover or 
wrapper " does not include the outside sheet of a newspaper 



^^u. S. V. Dempsey, 185 Fed. Rep, 450 (1911). See also, "Exclu- 
sion of Certain Publications from the Mails," Hearing before Com- 
mittee on the Postoffice and Postroads, House of Representatives, 
February i, 1915, p. 6. But the postmaster general in his Annual 
Report of 1914, p. 47, appears to think that the Swearingen case is 
still controlling. 

100 Rosen V. U. S., 161 U. S. 29 (1896). 

101 Reg. V. Hicklin, L. R. 3, Q. B. 360 (1868). 

102 Knowles v. U. S., 170 Fed. Rep. 409 (1909) ; U. S. v. Bennett, 
16 Blatch. 343 (1879), and U. S. v. Kennerley, 209 Fed. Rep. 119 

(1913). 

103 U. S. V. Boyle, 40 Fed. Rep. 664 (1889). 



POWER OF CONGRESS TO ESTABLISH POSTOFFICES 5 I 

and thus the postal authorities are unable to exclude period- 
ical publications on the ground that they contain scurrilous 
or defamatory matter.^°* From time to time bills have been 
introduced in Congress to authorize the postmaster general 
to exclude from the second-class privilege publications, as 
such, single issues of which are found to contain such non- 
mailable matter ; but no favorable action has ever been taken 
by Congress on any of these bills. An effort has also been 
made to deny all postal facilities in such cases.^^^ 

Vigorous objection has been made to the validity of laws 
excluding obscene matter, but the arguments have in no case 
any authoritative sponsorship. One writer, for example, 
urges that " under the pretext of regulating the mails," Con- 
gress controls " the psycho-sexual condition of the postal 
patrons." " The statute," he goes on to say, " furnishes no 
standard or test by which to differentiate what book is 
obscene from that which is not."^^^ Such a contention, so 
far as it is one of constitutional weakness in Congress is 
plainly invalid. Immoral libels are an offence at the com- 
mon law, "not because it is either the duty or province of 
the law to promote religion or morality by any direct means 
or punishments, but because the line which must be drawn 
is between what is and is not the average tone of morality 



^0* Postmaster General Blair in 1861 excluded from the mails 
twelve treasonable publications, " of which several had been pre- 
viously presented by the grand jury as incendiary and hostile to con- 
stitutional authority." Report of the Postmaster General, 1861, p. 
584. In 1914 the postmaster at Greenville, Pa., threw out of the mail 
several thousand cards containing facsimile appeals over his signa- 
ture by Colonel Roosevelt, calling upon all good citizens to oppose 
Senator Boies Penrose. The local postmaster held the cards to be 
defamatory, but his decision was reversed by the authorities at 
Washington. See N. Y. Sun, October 31, 1914. 

i°5 See below, p. 158 ff. 

106 Schroeder, Free Press Anthology, p. 171, See also his " Ob- 
scene " Literature and Constitutional Law. In The Unanswered 
Argument against the Constitutionality of the so-called Comstock 
Postal Laws, and for the Inviolability and Free and Equal Use of 
the United States Mail, T. B. Wakeman argues that Congress has 
no legislative power over the subject, and that "the power to sup- 
press obscenity and indecency, together with all other crimes or 
offenses is one of the general powers reserved in the United States 
Constitution to the people and the states," p. 30. 



52 THE POSTAL POWER OF CONGRESS 

which each person is entitled to expect at the hands of his 
neighbor as the basis of their mutual dealings. "^°^ The 
standard to determine what is obscene is the same as that 
which has prevailed at the common law. 

The right of individuals to use the mails is not an abso- 
lute one ; the legislative department of the government may 
impose reasonable restrictions on its exercise. It may say 
that a public convenience is not to be used to injure the 
morals of the citizens and may exclude such injurious matter, 
not with the view of making immorality criminal, but simply 
in order that the circulation may not be encouraged by the 
government. And to make this denial of facilities effective, 
Congress may punish violations. The grant of the postal 
power (to borrow the language used by the Supreme Court 
in a commerce case) " is complete in itself," and " Congress, 
as an incident to it, may adopt not only means necessary 
but convenient to its exercise, and the means may have the 
quality of police regulations." The right to use the mails is 
"given for beneficial exercise," and may be denied when it 
" is attempted to be perverted to and justify baneful 
existence."^**^ 

With regard to lotteries, however, the case is not so clear. 
The law declared that "no letter or circular concerning 
[illegal] lotteries, so-called gift concerts, or other similar 
enterprises, offering prizes, or concerning schemes devised 
and intended to deceive and defraud the public, for the pur- 
pose of obtaining money under false pretenses, shall be 
carried in the mail," and made violation criminal.^''^ In 
1876 the word " illegal " was stricken out, so that letters or 
circulars concerning all lotteries were prohibited,^^" and in 
1890 the law was further amended so as to include lottery 
advertisements in newspapers and to permit postmasters to 
withhold suspected mail.^^^ Trial of offenders may take 

^^"^ Patterson, Liberty of the Press, and Public Worship, p. 69. 

108 Hoke V. U. S., 227 U. S. 308 (1913). See " Is Congress a Con- 
servator of the Public Morals ? ", 38 American Law Review, 194. 

109 R. S. sec. 3894. 
"0 19 Stat. L. 90. 

^^^26 Stat. L. 465; see also 16 Ops. 5 (1878). 



POWER OF CONGRESS TO ESTABLISH POSTOFFICES 53 

place either in the district where the letter was mailed, or 
that to which it was addressed.^^^ 

The Senate Committee in charge of the amendments pro- 
posed in 1890, reported the bill to be based " on the con- 
ceded power of the government to determine what character 
of matter may be sent through the mails ; and its purpose is 
to protect the general welfare and morality of the people 
against the pernicious effects of lotteries."^^^ For authority 
the committee relied upon the case of Phalen v. Virginia, in 
which the Supreme Court said : 

" The suppression of nuisances injurious to public health 
or morality is amiong the most important duties of govern- 
ment. Experience has shown that the common forms of 
gambling are comparatively innocuous when placed in con- 
trast with the widespread pestilence of lotteries. The 
former are confined to a few persons and places, but the 
latter infests the whole community : it enters every dwell- 
ing ; it reaches every class ; it preys upon the hard earnings 
of the poor; it plunders the ignorant and simple." At 
common law, the committee argued, the king could not 
sanction a nuisance ; by parity of reasoning a nuisance may 
be denied governmental encouragement.^^* 

All of the anti-lottery legislation, enacted by Congress, 
has been sustained by the Supreme Court of the United 
States, although, I think, the reasoning might well have been 
more cogent. In the first case arising under the earlier 
legislation, the Court declared : 

"The validity of legislation prescribing what should be 
carried, and its weight and form and the charges to which it 
should be subjected, has never been questioned. . . . The 
power possessed by Congress embraces the regulation of 

"2 R. S. sec. 731, and Palliser v. U. S., 136 U. S. 257 (1890). This 
was a case where a letter was mailed in New York and addressed to 
a postmaster in Connecticut to induce him to violate his official duty. 
The District Court for the district of Connecticut was declared to 
have jurisdiction. 

^^3 51st Cong., 1st Sess., Sen. Rep. No. 1579; see also House Rep. 
No. 2844. 

"*8 Howard, 164 (1850). 



54 THE POSTAL POWER OF CONGRESS 

the entire postal system of the country. The right to 
designate what shall be carried necessarily involves the right 
to determine what shall be excluded."^^^ And in a later 
case, under the act of 1890, the freedom of the press also 
being at issue, the Court said : 

" The states before the Union was formed could establish 
postoffices and postroads and in doing so could bring into 
play the police power in the protection of their citizens from 
the use of the means so provided for purposes supposed to 
exert a demoralizing influence upon the people. When the 
power to establish postoffices and postroads was surrendered 
to the Congress it was as a complete power, and the grant 
carried with it the right to exercise all the powers which 
made that power effective. It is not necessary that Congress 
should have the power to deal with crime and immorality 
within the states in order to maintain that it possesses the 
power to forbid the use of the mails in aid of the perpetra- 
tion of crime and immorality."^^® 

Counsel for the petitioners in this case urged with con- 
siderable force that there was a valid distinction between 
obscene or indecent matter and lottery tickets and advertise- 
ments, but to this the Court replied : 

"The argument that there is a distinction between mala 
prohibita and mala in se, and that Congress might forbid 
the use of the mails in promotion of such acts as are uni- 
versally regarded as mala in se, including all such crimes as 
murder, arson, burglary, etc., and the offence of circulating 
obscene books and papers, but cannot do so in respect of 
other matters which it might regard as criminal or immoral, 
but which it has no power itself to prohibit, involves a con- 
cession which is fatal to the contention of the petitioners, 
since it would be for Congress to determine what are within 
and what are without the rule ; but we think there is no room 
for such a distinction here, and that it must be left to Con- 
gress in the exercise of a sound discretion to determine in 

115 Ex parte Jackson, 96 U. S. 727 (1878). 

116 In Re Rapier, 143 U. S. no (1892). 



POWER OF CONGRESS TO ESTABLISH POSTOFFICES 55 

what manner it will exercise the power which it undoubtedly 
possesses." 

Special exception is taken by Mr. Hannis Taylor to the 
doctrines of the Rapier case. He says : " The act against 
the circulation of immoral literature, which was not drawn 
in a paroxysm of excitement, exhausts the entire constitu- 
tional authority over the intellectual contents of documents 
passing through the mails that Congress can exercise." 
And referring to the exclusion of lottery tickets and adver- 
tisements : " This new born heresy — created to meet a special 
emergency — will be utterly repudiated by the American 
people the moment when the despotic and irresponsible 
power over opinion with which the fiat of the Supreme 
Court has armed Congress, is applied, as it surely will be, 
to some subject which will arouse and quicken the public 
conscience."^^'' 

As yet, however, there has been manifested no disposition 
to repeal any of the lottery legislation. Congress has, in 
fact, made further exclusions, with slight popular protest. 
The act of July 31, 1912, excludes from interstate com- 
merce, from the mails, and from importation into the 
United States, " any film or other pictorial representation or 
encounter of pugilists, under whatever name, which is de- 
signed to be used or may be used for purposes of public 
exhibition. "^^^ This, probably, is the most advanced action 
yet taken by Congress. 

It should be noticed, however, in concluding this review, 
that all articles which Congress has thus far excluded from 
the mails have been inherently different from the articles 
which may be transmitted, in that they may have a harmful 
effect on other mail or on recipients. Explosives, liquids, in- 
fernal machines, intoxicating liquors, — all are in their nature 
dangerous to the mail or to the addressees. Obscene litera- 
ture and lottery tickets are proper subjects for denuncia- 

117 " A Blow at the Freedom of the Press," in 155 North American 
Review, p. 694. 

118 Act of July 31, 1912; 37 Stat. L. 240. But see Keller v. U. S., 
213 U. S. 138 (1908). 



56 THE POSTAL POWER OF CONGRESS 

tion by the government and Congress may attempt to mini- 
mize their evil by denying them postal facilities. It may be 
said, therefore, that all prohibitory legislation has had the 
character of police regulations ; each exclusion, when as- 
sailed, has been justified on the facts of the particular case, 
and the Supreme Court has never gone so far as has a lower 
federal tribunal in declaring that, " Congress has exclusive 
jurisdiction over the mails and may prohibit the use of the 
mails for the transmission of any article. Any article, of 
any description, whether harmless or not, may, therefore, 
be declared contraband in the mail by act of Congress and 
its deposit there made a crime."^^^ 

Fraud Orders. — The denial of postal privileges when they 
are used to defraud may be justified upon the same grounds 
as the exclusion of obscene matter and lottery tickets ; Con- 
gress has authority to make the use of the mails subject to 
police regulations. But it is provided that " the postmaster 
general may, upon evidence satisfactory to him that any 
person or company is engaged in conducting any lottery "^"° 
or fraudulent scheme, "instruct postmasters at any post- 
office at which registered letters arrive directed to any such 
person or company ... to return all such registered letters 
to the postmaster at the office at which they were originally 
mailed, with the word ' Fraudulent ' plainly written or 
stamped upon the outside thereof " and they may be re- 
turned to the writers under such regulations as the post- 
master general may prescribe. But under this section there 
is no authority to open any sealed letter.^^^ 

The constitutionality of these provisions has been fully 
established by the Supreme Court of the United States, 
which has held that the postal system is not -'a necessary 
part of the civil government in the same sense in which the 
protection of life, liberty and property, the defense of the 

"9U. S. V. Bott, 24 Fed. Cas. 1204 (1873). 

120 As to what constitutes a lottery see Eastman v. Armstrong 
Byrd Music Co., 212 Fed. Rep. 662 (1914) ; 52 L. R. A. n. s. 108, 
and note. 

121 Postal Laws and Regulations of 1913, p. 267. 



POWER OF CONGRESS TO ESTABLISH POSTOFFICES 57 

government against insurrection, and foreign invasion and 
the administration of public justice are; but it is a public 
function, assumed and established by Congress for the gen- 
eral welfare." Thus it was constitutional to exclude such 
fraudulent matter. 

As to other objections, the Court declared that due 
process of law was not denied when an executive official 
was given authority to control the disposition of property; 
" nor do we think the law unconstitutional because the post- 
master general may seize and detain all letters, which may 
include letters of a purely personal or domestic character, 
and having no connection whatever with the prohibited 
enterprise." The fact that the postmaster general may not 
open letters not addressed to himself makes such a provision 
necessary in order that the law may be effective. Finally, 
said the Court, "the objection that the postmaster general is 
authorized by statute to confiscate the money, or the repre- 
sentative of the money, of the addressee, is based upon the 
hypothesis that the money or other article of value con- 
tained in a registered letter becomes the property of the 
addressee as soon as the letter is deposited in the postoffice." 
But the postmaster general, in seizing the letter, does not 
confiscate it, or change title thereto ; he merely denies the use 
of the faciHties of the postoffice. It would be proper for 
Congress to empower the postmaster general, in the first 
instance, to refuse to receive the letter at all, if its objection- 
able character is known to him.^^^ 

The sole remaining question is therefore as to the conclu- 
siveness of administrative determinations and it appears that 
in the postoffice cases the courts have exercised their powers 
of review further than in any others coming up from differ- 
ent executive departments. ^^^ The Supreme Court has sum^- 
marized the rule as follows : " That where the decision of 

^22 Public Clearing House v. Coyne, 194 U. S. 497 (1904). 

123 See Brinton, " Some Powers and Problems of the Federal Ad- 
ministrative," University of Pennsylvania Law Review, January, 
I9I3» reprinted as 62d Cong., 3d Sess., Sen Doc. No. 1054. See also 
Pierce, Federal Usurpation, p. 335 ff. 



58 THE POSTAL POWER OF CONGRESS 

questions of fact is committed by Congress to the judgment 
and discretion of the head of a department, his decision 
thereon is conclusive; and that even upon mixed questions 
of law and fact, or of law alone, his action will carry with 
it a strong presumption of its correctness and the courts 
will not ordinarily review it, although they may have the 
power and will occasionally exercise the right of so doing."^^* 

But it is necessary that the facts upon which the adminis- 
trative decision is based be not such that the application of 
the statute will be a clear mistake of law. Thus, in Ameri- 
can Magnetic School of Healing v. McAnnulty, the post- 
master general in effect made a fraud order depend on his 
opinion as to the efficacy of the complainant's method of 
healing by encouraging the proper use of the mind to cor- 
rect physical ailments. The court ruled that under no con- 
struction was there evidence sufficient to show fraud. " To 
authorize the interference of the postmaster general," said 
the decision, "the facts stated must, in some aspect, be 
sufficient to permit him, under the statutes, to make the 
order."^^^ Or, expressed differently, if it is "legally im- 
possible" under any interpretation of the facts, "to hold 
that the complaining party was engaged in obtaining money 
through the mails by false or fraudulent representations," 
the courts will intervene.^^® The general rule may, there- 
fore, be stated as follows : Judicial review will be granted 
only in those cases where it appears that the order is with- 
out legal authority; exercise of discretion will not be re- 
viewed unless, upon any construction of the facts, the order 
is clearly wrong, and even upon questions of law alone, it 
will carry a strong presumption of correctness. 

A number of proposals have been made and bills intro- 
duced in Congress to provide for a judicial review of the 
postmaster general's decisions. Congressman Crumpacker, 

124 Bates & Guild Co. v. Payne, 194 U. S. 106 (1904). 

125 American School of Magnetic Healing v. McAnnulty, 187 U. S. 
94 (1902). 

126 Missouri Drug Co. v. Wyman, 129 Fed. Rep. 623 (1904). See 
also U. S. ex rel. Reinach v. Cortelyou, 28 App. D. C. 570 (1906), 
12 L. R. A. n, s. 166, and note. 



POWER OF CONGRESS TO ESTABLISH POSTOFFICES 59 

for instance, argued " that in all departments of government 
there is no instance where substantial rights are taken from 
a citizen upon confidential reports without a legal right to be 
heard and to see and examine the evidence that is submitted 
against him, aside from the fraud order and practice in the 
postoffice department."^^^ He urged that the law should 
be changed and a copy of the order served on the concern 
suspected of fraudulent practices. This order should not 
become operative for fifteen days, except to the extent of 
holding the mail undelivered in the postoffice. The aggrieved 
party could file a bill in the circuit court with a bond of 
$500 and a summary trial at law would be held upon the 
issue, which the court should formulate upon the facts in- 
volved. Appeal would lie and pending final action the mail 
would be held in the postoffice or disposed of by order of 
the court. Another bill authorized a review after the orders 
had been issued. 

Vigorous objection to such changes in the law was made 
by the postoffice authorities. A memorandum filed by the 
assistant attorney general for the department^^^ declared 
that the prime object of the regulations was to secure 
summary action. "The value of the law depends upon 
the promptness with which schemes to defraud may be 
denied the use of the mails to further the swindle. If ac- 
tion is delayed any considerable time, — as would necessarily 
be the case in a judicial proceeding, — the scheme will con- 
summate its fraud before the interference occurs." If Mr. 
Crumpacker's bill became law, the only efiPectual action 
would be criminal prosecution, and this is always difficult 
since the victimized parties live at a distance, and it is hard 
to get evidence to offer at the trial. 

In practice, the memorandum explained, investigations are 
made by inspectors of cases where fraudulent practices are 

^27 Statement of Hon. E. D. Crumpacker before the House of Rep- 
resentatives Committee on the Judiciary, May 25, 1906, in support of 
H. R. 16548. 

^28 Memorandum by the Assistant Attorney General for the Post- 
office Department on Postal "Fraud Order" Law (1906). 



6o THE POSTAL POWER OF CONGRESS 

alleged, and reports sent to the department. If a prima 
facie case of fraud is established, the person or concern in- 
volved is notified and given an opportunity to appear before 
the assistant attorney general for the postoffice department ; 
after the hearing a report is made to the postmaster gen- 
eral who takes final action. But such a hearing is not re- 
quired by the statute.^^^ 

The codification of postal laws presented to Congress in 
1908, provided for the creation of a Commission of Postal 
Appeals, to consist of three members, one of whom must be 
a lawyer, appointed by the President. One of its duties 
would be to " pass upon the issuance of fraud orders against 
persons alleged to be conducting lotteries, gift enterprises, or 
schemes to defraud." Cases would be submitted by the 
assistant attorney general upon his being satisfied that the 
evidence was legally sufficient to justify the order which the 
Commission would issue or refuse after a hearing; provi- 
sional action, however, could be taken, and pending final 
determination, the mail matter could be held in the post- 
office.^2« 

129 " It must also be borne in mind that the idea of the fraud order 
law is not punitive, but is simply protective. It is to prevent the use 
of the mails to defraud the public. The theory is that by the stop- 
ping of the mail privileges in the initiating stages of the fraud, the 
consummation of the scheme will be prevented. It would be utterly 
impossible to fulfill this purpose by a trial in court, for the necessary 
legal evidence could not generally be obtained until the scheme had 
run its course." Ibid., p. 6. 

130 Final Report of the Joint Commission on the Business Method 
of the Postoffice Department and the Postal Service (December 17, 
1908), 6oth Cong., 2d Sess., Sen. Rep. No. 701, chap. 4, sees. 90-99. 



CHAPTER III 

The Power of Congress to Establish Postroads 

Legislative Action. — Apart from the postoffice, problems 
of road construction and internal improvements, by the 
necessities of development, almost immediately confronted 
the new nation, which scanned the delegated powers in the 
Federal Constitution, and not finding any specific authoriza- 
tion of congressional action, asserted the right upon several 
clauses, among them being the one to establish postroads. 
By 1793 there were only one hundred and ninety-five post- 
offices throughout the country^ and communication was in 
a deplorable condition, what roads there were being little 
more than paths and quite impassable for wheeled vehicles. 
Yet communication was of the utmost importance, and 
especially was this true in respect to the West, it being 
thought that commercial and political development, if not 
actual retention, was impossible without easier means of 
access. Some road construction had been accomplished by 
private initiative with state aid, but the problem was not 
really attacked, and when in 1792 Congress established a 
postroute between Richmond, Va., and Danville, Ky., and 
later one between Philadelphia, Pittsburgh, and Louisville,^ 
the West became jealous of the facilities accorded the East. 
This feeling was encouraged by the Atlantic States being per- 
mitted by Congress to levy tonnage duties in order to effect 
the improvement of rivers and harbors.^ Appropriations 
had also been made by Congress for lighthouses, etc., and 
soon the demands of the Western States were too strong to 
be resisted. In 1806 Congress was forced to take definite 
action.* 

^American State Papers, vol. xv (Postoffice), p. 28. 
2 I Stat. L. 233. 

^ Lalor, Encyclopaedia of Political Science, vol. ii, p. 556. 
* I Stat. L. 251. 

61 



62 THE POSTAL POWER OF CONGRESS 

The constitutional problem, however, had for some time 
engaged the attention of the leading statesmen ; all admitted 
the necessity for federal aid, but the power of Congress 
was seriously questioned. In his first annual address 
Washington urged the encouragement of " intercourse be- 
tween the distant parts of our country by a due attention to 
the postoffice and postroads,"^ and repeated this recom- 
mendation in later addresses.^ Chief Justice Jay had in 
1790 given Washington his opinion, certainly entitled to 
great weight, that "the Congress have power to establish 
postroads. This would be nugatory unless it implied a 
power to repair these roads themselves, or compel others to 
do it. The former seems to be the more natural construc- 
tion. Possibly the turnpike plan might gradually and use- 
fully be introduced."^ 

But there were also many who held to a stricter con- 
struction of the Constitution. Jefferson was doubtful. 
Writing to Madison in 1796 he asked: " Does the power to 
establish postroads given you by Congress, mean that you 
shall make the roads, or only select from those already 
made those on which there shall be a post ? " The one con- 
struction would give Congress enormous powers ; the other, 
if inadequate, could be referred to the states for action.^ 

The question of federal power was first definitely raised 
in 1806 when the demands of the Western States became 
irresistible and Congress began the construction of the 
Cumberland Road, the famous highway which was to figure 
in the economic and political history of the United States 
for the next half century, and to arouse acute discussion as 
to the meaning of the postal clause.^ Ohio was admitted as 

5 Richardson, vol. i, p. 66. 

6 Ibid., pp. 83, 107. 

■^ Correspondence and Public Papers of John Jay (Ed. Johnston), 
vol. iii, p. 407. 

s Jefferson, Writings (Ed. Ford), vol. vii, p. 63. 

^ In the discussion of this undertaking and its relation to the post- 
office clause of the Constitution, I have derived much assistance 
from Professor J. S. Young's " A Political and Constitutional Study 
of the Cumberland Road" (University of Chicago Press, 1904), 
although this only incidentally considers the inquiry which my essay 
attempts. 



POWER OF CONGRESS TO ESTABLISH POSTROADS 63 

a state in 1802 and the opportunity was seized to make a 
mutually advantageous arrangement by which the United 
States would retain the same rights as to the public domain 
which it possessed while Ohio was yet a territory (control of 
lands as yet unpaid-for and suspension of state taxes), and 
on the other hand, as a quid pro quo, a percentage of the 
proceeds derived from the sale of certain of the lands, 
should be applied to defray the cost of road construction 
under the auspices of the general government. Such an 
arrangement was first proposed by Gallatin^*^ who urged 
" that one tenth part of the net proceeds of the lands here- 
after sold by Congress shall, after deducting all expenses 
incident to the same, be applied towards laying out and 
making turnpike roads . . . under the authority of Con- 
gress, with the consent of the several states through which 
the same shall pass."^^ 

The next action came three years later when Congress 
authorized the President to appoint a commission to lay out 
the road;^^ consent to the construction had already been 
given by the legislatures of Maryland and Virginia, but not 
by that of Pennsylvania.^^ Maryland's authorization for 
the improvement of postroads within the state was given in 
1803 and contained a limitation to the effect that Congress 
was not thereby given the power " to cut down or use the 
timber or other material of any person or persons against 
his, her, or their consent,"^* — an explicit denial of the right 
of eminent domain in connection with the postal power. 

In January, 1807, Jefferson received the report of the 
commission appointed to locate the road, but the President 
withheld either acceptance or disapproval until he should re- 

i<^ Gallatin, Writings (Ed. Adams), vol. i, p. 76; Letter to William 
B. Giles, chairman of the House of Representatives Committee for 
admitting the North Western Territory into the Union. 

11 The proposed road fund of 10 per cent., however, was by the 
act which Congress passed on March 3, 1803, reduced to 5 per cent, 
with some restrictions as to expenditure within the state. 2 Stat. 
L. 226. 

^2 2 Stat. L. 357; Act of March 29, 1806. 

13 Young, The Cumberland Road, 21. 

i^Laws of Maryland, 1802-1804, ch. 115. 



64 THE POSTAL POWER OF CONGRESS 

ceive ''full consent to a free choice of route through the 
whole distance."^^ When Pennsylvania acted, its legislature 
detailed the powers which the United States might exercise, 
and stipulated that persons whose property should be taken 
must be given compensation ; but this was sufficient for the 
" full consent " which Jefferson demanded before the under- 
taking could be begun. 

Even with these limitations congressional action as to 
postroads had not been taken without some doubts as to its 
constitutionality ; yet the demands for federal aid were so 
great and the responses so meagre that serious objection was 
not made. In spite of the fact that he had sanctioned ap- 
propriations for the improvement of a canal in Louisiana 
and a road from the Georgia frontier to New Orleans,^* 
Jefferson thought that the postal clause did not grant ade- 
quate power for the construction of roads by Congress.^^ 
In his sixth annual message (after the passage of the Cum- 
berland Road bill) he urged that the treasury's surplus 
should be applied " to the great purposes of the public educa- 
tion, roads, canals, and such other objects of public improve- 
ment as it may be thought proper to add to the constitutional 
enumeration of federal powers," but supposed that a con- 
stitutional amendment would be necessary.^* Two years 
later the growing surplus led him to return to the same 
theme. " Shall the revenue be reduced ? " he asked. " Or 
shall it rather be appropriated to the improvement of roads, 
canals, rivers, education, and other great foundations of 
prosperity and union, under the powers which Congress may 
already possess, or such amendment of the Constitution 
as may be approved by the states. While uncertain of the 
course of things the time may be advantageously employed 

15 Miscellaneous State Papers, vol. i, p. 474 ; Young, The Cumber- 
land Road, p. 41. 

16 2 Stat. L. 397, 516. 

1'^ On August 31, 1806, Jefferson wrote to Gallatin, commenting on 
the latter's plan for internal improvements, with a word of sugges- 
tion as to branches, " if it be lawful and advisable to extend our 
operations to them." Jefferson, Writings (Ed. Ford), vol. viii, p. 466. 

18 Richardson, vol. i, p. 409 ; Jefferson, vol. viii, p. 494. 



POWER OF CONGRESS TO ESTABLISH POSTROADS 65 

in obtaining the powers necessary for a system of improve- 
ment should that be thought best."^'* 

It was not, however, until during Madison's administra- 
tion that the question was to become an acute one. Under 
Washington and Adams there had been no appropriations 
for roads ; under Jefferson Congress had given money for 
the Cumberland Road, for a route from the frontier of 
Georgia to New Orleans and a canal in Louisiana.^^ But 
under Madison eleven acts were passed by Congress^^ and 
these caused an exhaustive and sometimes acrimonious dis- 
cussion of the constitutional principles involved, with the 
intervention of the President through admonitory messages 
and one veto, on the day before he was to give up his office. 

Madison's opinion as to whether the Constitution had 
given Congress the power to undertake the construction of 
roads seems not to have been absolutely consistent. Writ- 
ing in The Federalist, he had urged as one of the advantages 
that the adoption of the Constitution would insure the fact 
that *' intercourse throughout the union will be facilitated 
by new improvements. Roads will everywhere be shortened, 
and kept in better order; accommodations for travellers 
will be multiplied and meliorated ; . . . The communication 
between the western and Atlantic districts, and between dif- 
ferent parts of each, will be rendered more and more easy by 
those numerous canals with which the beneficence of nature 
has intersected our country, and which art finds it so little 
difficult to connect and complete. "^^ 

On February 5, 1796, in the House, Madison offered a 
resolution authorizing the President to have made a survey 
of the postroad from Maine to Georgia, the expense being 
borne by the United States. ^^ Two good effects, said 

1^ Richardson, vol. i, p. 456 ; Jefferson, vol. ix, p. 224. 

20 2 Stat. L. 2>S7, 397. 

21 A convenient list of these and of later laws is to be found in 
E. C. Nelson, *' Presidential Influence on the Policy of Internal Im- 
provements," Iowa Journal of History and Politics, vol. iv, App. A 
(p. 53ff). 

22 The Federalist, No. 14. 

2s Annals of 4th Congress, ist Sess., pp. 297, 314. A bill author- 
izing the survey passed the House on May 20. Ibid., p. 1415. 
S 



66 THE POSTAL POWER OF CONGRESS 

Madison, would accrue ; " the shortest route from one place 
to another would be determined upon, and persons, having 
a certainty of the stability of the roads, would not hesitate 
to make improvements on them." It was to be the "com- 
mencement of an extensive work " ; and during his admin- 
istration Madison approved acts which appropriated over 
$500,000, most of it for the Cumberland Road.^* 

There had been, it is true, an intimation of a changed 
attitude when, in his seventh annual message (December 5, 
1815), although strongly recommending the construction of 
roads and canals under national authority, he called it "a 
happy reflection that any defect of constitutional authority 
which may be encountered can be supplied in a mode which 
the Constitution itself has providently pointed out."^^ A 
year later he asked Congress to exercise its existing powers, 
and, if necessary, to resort " to the prescribed mode of en- 
larging them, in order to effectuate a comprehensive system 
of roads and canals, such as will have the effect of draw- 
ing more closely together every part of our country. "^^ 

Madison's decisive stand, however, was to be taken on the 
so-called " bonus bill," the purpose of which was to provide 
a permanent fund for road construction. In the famous 
report which Gallatin had prepared for the Senate (April 
6, 1808), he had denied any right of eminent domain inher- 
ing in the United States and had declared that no road or 
canal could be opened without the consent of the states con- 
cerned. This fact, Gallatin argued, necessarily controlled 
the manner of expenditure (in the absence of constitutional 
amendment). He suggested two expedients: congressional 
undertakings with the consent of the states, or subscriptions 
by Congress to the shares of companies incorporated for 
the purpose of building highways.^^ Concerning Gallatin's 
second alternative, no action was taken for two years. In 

2*2 Stat L. 555, 661, 668, 670, 730, 829; 3 Stat. L. 206, 282, 315, 

318, 377- 

25 Richardson, vol. i, p. 567, 

26 Richardson, vol. i, p. 576; see Farrand, vol. iii, p. 463. 

27 Miscellaneous State Papers, vol. i, p. 741. 



POWER OF CONGRESS TO ESTABLISH POSTROADS 6/ 

1810, however, a Senate committee reported favorably a 
blanket bill which would make the government owner of 
one half the stock in any corporation formed to carry out 
the projects recommended by Gallatin in his report.^^ But 
the theory of the " bonus bill " was radically different. 

It was reported in the House by a special committee of 
which Calhoun was chairman, and set aside the $1,500,000 
bonus which was to be paid by the United States Bank for 
its charter, together with the dividend arising from the stock 
held by the government; there would thus be provided a 
permanent fund for the construction of roads and canals. 

The chief argument in support of the bill was made by 
Calhoun. ^^ He expressed no opinion as to the validity of 
the objection that Congress had not the power to cut a road 
through a state without its consent. The proposed bill did 
not raise that question. But, said Calhoun, "the Constitu- 
tion gives to Congress the power to establish postoffices and 
postroads. I know that the interpretation usually given to 
these words confines our powers to that of designating only 
the postroads ; but it seems to me that the word * establish ' 
comprehends something more," it would seem to give Con- 
gress the right to construct. Calhoun's argument is not a 
closely reasoned one and does not carry conviction in all 
respects ; nevertheless, his main point upon which he lays 
chief weight, — that the appropriation of money by Congress 
is not confined to the furtherance of those powers enumer- 
ated in the Constitution, — was well taken.^^ 

The bill was passed by Congress,^^ not, however, without 
many doubts being expressed as to its constitutionality,^^ 
and went to President Madison at the very close of his ad- 
ministration. Madison did not resort to a pocket veto and 
on March 3, 181 7, sent a message to Congress giving the 
grounds for his objections to the measure. He held that 

28 Annals of nth Congress, vol. ii, pp. 1401, 1443. 

29 Calhoun, Works, vol. ii, p. 193. 

30 See below, p. 75. 

31 Annals of 14th Congress, 26. Sess., p. 191. 

32 Ibid., pp. 177, 191. 



68 THE POSTAL POWER OF CONGRESS 

the act could not be justified under the commerce or general 
welfare clauses, but made no use of the postal power as a 
possible, if not adequate source of authority. He said : 

" If a general power to construct roads and canals, and to 
improve the navigation of water courses, with the train of 
powers incident thereto, be not possessed by Congress, the 
assent of the states in the mode provided in the bill cannot 
confer the power. The only cases in which the consent and 
cession of particular states can extend the power of Congress 
are those specified and provided for in the Constitution."^^ 

In this message Madison did not clearly suggest a distinc- 
tion between the simple power to appropriate, to appropriate 
and construct, with the consent of the states, and to con- 
struct against the will of local jurisdictions. Before reach- 
ing the conclusion quoted above, he had used this ambigu- 
ous language : " A restriction of the power ' to provide for 
the common defense and general welfare ' to cases which 
are to be provided for by the expenditure of money would 
still leave within the legislative power of Congress all the 
great and important measures of government, money being 
the ordinary and necessary means of carrying them into 
execution."^* Madison declared later that his veto con- 
templated the appropriation as well as construction; yet 
during his tenure he sanctioned measures providing funds 
for various roads. ^^ 

33 Richardson, vol. i, p. 585 ; Mason, The Veto Power, p. 95. Jef- 
ferson wrote in 1817 that the President's veto was on " sound 
grounds ; that instrument not having placed this among the enumer- 
ated objects to which they are authorized to apply the public con- 
tributions," and called the veto " a fortunate incident." Jefferson, 
Writings (Ed. Ford), vol. x, pp. 81, 91. 

34 Richardson, vol. i, p. 585. 

35 As late as 1830 Madison wrote : " I observe that the President, 
in his late veto, has seen in mine of 1817, against internal improve- 
ments by Congress, a concurrence in the power to appropriate money 
for the purpose. Not finding the message which he cites, I can only 
say that my meaning must have been unfortunately expressed or is 
very strangely misinterpreted. The veto on my part certainly con- 
templated the appropriation of money as well as the operative and 
jurisdictional branches of the power. And, as far as I have refer- 
ence to the message, it has never been otherwise understood." Let- 
ters and Other Writings of James Madison, vol. iv, p. 86. 



POWER OF CONGRESS TO ESTABLISH POSTROADS 69 

This distinction which Calhoun pointed out, and concern- 
ing which, in his message at least, Madison was vague, was 
to be stressed by Monroe and by Congress in the exhaustive 
debates upon the nature and extent of the power that the 
federal government possessed.^^ Monroe did not delay in 
making known his attitude and went directly to the point 
in his first annual message when he said : 

*' Disregarding early impressions, I have bestowed on the 
subject ail the deliberation which its great importance and a 
just sense of my duty required, and the result is, a settled 
conviction, in my mind, that Congress do not possess the 
right. ... In communicating this result, I cannot resist the 
obligation which I feel, to suggest to Congress the propriety 
of recommending to the states the adoption of an amend- 
ment to the Constitution, which shall give Congress the right 
in question. "^^ 

This portion of President Monroe's message was re- 
ferred to a special committee in the House of Representa- 
tives which reported on December 15, 181 7, in an able docu- 
ment.^^ The problem, said the committee, involved " a 
great constitutional question on the one hand," and was 
" intimately connected on the other, with the improvement, 
the prosperity, the union, and the happiness of the United 
States." It was argued, in brief, that Congress had the 
power: *' i. To lay out, improve, and construct postroads 
through the several states, with the assent of the respective 

3^ Before his annual message Monroe wrote to Madison : " The 
question respecting canals and roads is full of difficulty, growing 
out of what has passed on it. After all the considerations I have 
given it, I am fixed in the opinion, that the right is not in Congress, 
and that it would be improper in me, after your negative, to allow 
them to discuss the subject and bring in a bill for me to sign in the 
expectation that I would do it. I have therefore decided ... to 
recommend the procuring of an amendment from the states, so as to 
vest the right in Congress." Writings of James Monroe, vol. vi, 
p. 32. Madison replied, approving this course. " The expediency of 
vesting in Congress" he said, " a power as to roads and canals, I 
have never doubted, and there has never been a moment when such 
a proposition to the states was so likely to be approved." Letters 
... of James Madison, vol. iii, p. 50. 

37 Richardson, vol. ii, p. 18. 

38 Annals of 15th Congress, 1st Sess., vol. i, p. 451. 



70 THE POSTAL POWER OF CONGRESS 

States. 2. To open, construct, and improve military roads 
through the several states, with the assent of the respective 
states. 3. To cut canals through the several states, with 
their assent. ..." 

Such powers were not based, it was contended, on a liberal 
construction of the Constitution, nor were they dangerous 
in tendency and capable of working an injury to the states, 
for there was no recognition of a right of eminent domain 
or of congressional supremacy in respect to jurisdiction. 
Considering specifically the extent of the postal power the 
committee said: 

" That Congress, with the assent of the states respectively, 
may construct and improve their postroads, under the power 
' to establish postoffices and postroads ' seems to be manifest 
both from the nature of things and from analogous con- 
structions of the Constitution. It has been contended, in- 
deed, that the word establish, in this clause of the instru- 
ment, comprehends nothing more than a mere designation 
of postroads. But if this be true, the important powers 
conferred on the general government in relation to the post- 
office, might be rendered in a great measure inefficient and 
impracticable. ... If the power to establish confers only 
the authority to designate, Congress can have no right either 
to keep a ferry over a deep and rapid river for the trans- 
portation of the mails, or to compel the owners of a ferry 
to perform that service; and yet our laws contain an act, 
acquiesced in for more than twenty years, imposing penal- 
ties on ferrymen for detaining the mail and on other persons 
for retarding or obstructing its passage. It would be diffi- 
cult to discover how this power of imposing penalties can 
be supported, either as an original or accessory power except 
upon principles of more liberal construction than those now 
advanced. . . . 

" The authority which is conferred by the Constitution to 
make all laws which shall be ' necessary and proper ' for 
carrying into execution the enumerated powers, is believed 
to vest in the general government all the means which are 



POWER OF CONGRESS TO ESTABLISH POSTROADS /I 

essential to the complete enjoyment of the privilege of 
* establishing postoffices and postroads ! ' Even without this 
clause of the Constitution the same principle would have to 
be applied to its construction, since according to common 
understanding the grant of a power implies a grant of what- 
ever is necessary to its enjoyment. . . . 

" It is indeed from the operation of these words ' necessary 
and proper ' in the clause of the Constitution which grants 
accessory powers, that the 'assent of the respective states' 
is conceived a prerequisite to the improvement even of post- 
roads. For, however ' necessary ' such improvements might 
be, it might be questioned how far an interference with the 
state jurisdiction over its soil, against its will, might be 
' proper.' Nor is this instance of an imperfect right in the 
general government without an analogy in the Constitution ; 
the power of exercising jurisdiction over forts, magazines, 
arsenals, and dockyards, depending upon previous purchase 
by the United States with the consent of the states. 

'* Admitting then, that the Constitution confers only a 
right of way, and that the rights of soil and jurisdiction 
remain exclusively with the states respectively, yet there 
seems to be no sound objection to the improvement of roads 
with their assent." 

In the long debate which followed this report upon the 
President's message, the opinions expressed veered between 
ultra-conservative and ultra-liberal positions. A middle 
ground was taken by Clay, whose speeches are perhaps the 
best on the subject.^^ He was a stanch supporter of the 
committee's report, contending " that the power to construct 
postroads is expressly granted in the power to establish 
postroads." " If it be," he said, " there is an end to the 
controversy. . . . To show that the power is expressly 
granted, I might safely appeal to the arguments already used 
to prove that the word establish, in this case, can mean only 
one thing, — the right of making." According to Clay, "to 
establish justice" as used in the preamble of the Constitu- 

^9 Annals of 15th Cong., ist Sess., vol. ii, p. 1366. 



^2 THE POSTAL POWER OF CONGRESS 

tion, did not compel Congress to adopt the systems then 
existing. "Establishment means in the preamble, as in 
other cases, construction, formation, creation." 

When it is considered that " under the old Articles of 
Confederation, Congress had over the subject of postroads 
as much power as gentlemen allow to the existing govern- 
ment, that it was the general scope and spirit of the new 
Constitution to enlarge the powers of the general govern- 
ment, and that, in fact, in this very clause, the power to 
establish postroads is superadded to the power to estabhsh 
postoffices, which was alone possessed by the former govern- 
ment," the argument on this point is successfully maintained. 

Clay contended that "it was certainly no objection to the 
power that these roads might also be used for other pur- 
poses. It was rather a recommendation that other objects, 
beneficial to the people, might be thus obtained, though not 
within the words of the Constitution." For an illustration 
he pointed to the encouragement of manufactures under the 
power to levy taxes. Postroads could be devoted to " other 
purposes connected with the good of society. "^^^Construc- 
tion completed, Clay argued, Congress had a jurisdiction 
"concurrent with the states, over the road, for the purpose 
of preserving it, but for no other purpose. In regard to all 
matters occurring on the road, whether of crime, or contract, 
etc., or any object of jurisdiction unconnected with the 
preservation of the road, there remained to the states ex- 
clusive jurisdiction."*^ 

At the conclusion of the debate several resolutions were 
offered and voted upon, only one receiving a majority. It 
recited " that Congress have power, under the Constitution, 
to appropriate money for the construction of postroads, 
military and other roads, and of canals and for the improve- 

*o Annals of 15th Cong., ist Sess., vol. i, p. 1173. On April 27, 
1816, Congress appropriated money " for the purpose of repairing 
and keeping in repair " certain roads under the direction of the Sec- 
retary of War. 3 Stat. L. 315. On May 20, 1826, provision was 
made for the repair of a postroad under the direction of the post- 
master general. 4 Stat. L. 190, 154. No mention was made of the 
consent of the states. 

*i Annals of 15th Congress, ist Sess., vol. i, p. 1169. 



POWER OF CONGRESS TO ESTABLISH POSTROADS 73 

ment of water courses." In this matter Congress sanc- 
tioned the distinction between appropriation and construc- 
tion. Three other resolutions were to the effect that Con- 
gress could build, generally, post and military roads ; roads 
and canals necessary " for commerce between the states," 
and canals for " military purposes." These avowals of 
power, although they stated slightly different propositions, 
all intim.ated that the consent of the states would not be 
required, since each contained a proviso that private property 
should not be taken for public use without compensation, — 
a liberal attitude for this period of constitutional interpreta- 
tion.*^ All of the resolutions, save the first, failed of 
passage by small majorities. 

The consideration of Monroe's message in the Senate was 
very favorable to the President ; there was little disposition 
to criticize him for having announced his views prematurely, 
— possibly with the intention of warning Congress, — and no 
attempt was made to ascertain directly the Senate's opinion 
on the constitutional powers of Congress. Indirectly, how- 
ever, the Senate asserted its opinion through passing on a 
proposed amendment to the Constitution which was urged 
in response to Monroe's intimation that this was the proper 
method of dealing with the matter. 

From time to time several proposed amendments to the 
Constitution had been introduced, and these, unlike others 
advocated during "the same period of conflict between 
the broad and strict constructionists,"*^ aimed to increase the 
powers of Congress, and to take away the taint of usurpa- 
tion which, at least in the minds of many, was considered as 
attaching to the road projects either under way or seriously 
contemplated. Amendments empowering Congress to con- 
struct roads and canals with the consent of the states were 
suggested in 1813 and 1814, and on December 9, 181 7, fol- 



42 Annals of 15th Cong., ist Sess., vol. ii, p. 1380 fif. 

*3Ames, The Proposed Amendments to the Constitution of the 
United States during the First Century of its History, p. 20. (Re- 
port of the American Historical Association, 1896.) 



74 THE POSTAL POWER OF CONGRESS 

lowing the advice of Monroe's message, Senator Barbour 
introduced in the Senate such a resolution which made state 
consent necessary and provided that the appropriations 
should be distributed "in the ratio of representation which 
each state shall have in the most numerous branch of the 
national legislature. But the portion of any state may be 
applied to the purpose aforesaid in any other state." When 
the resolution was reported, it was indefinitely postponed by 
a vote of 22 to 9.** This result showed that there was 
slight chance of passing any general road construction bill 
over the president's veto, although some of the votes against 
the resolution were cast on the ground that Congress already 
had the power. 

But the advocates of road construction were not to be 
denied. In compliance with a resolution, Calhoun, as secre- 
tary of war, submitted to the House of Representatives on 
January 14, 181 9, a comprehensive report on roads and 
canals, the necessity for them, and a scheme for construction. 
Calhoun, however, "thought it improper under the resolu- 
tion of the House to discuss the constitutional question."*^ 

The report was laid on the table*^ and although in Jan- 
uary, 1822, the House Committee favored surveys for canals 
from Boston south along the Atlantic coast, and in the 
middle west, and a road from Washington to New Orleans, 
nothing became law with the exception of small appropria- 
tions for the Cumberland Road.*^ It was, however, an act 
for the preservation and repair of this road, passed by the 
House on April 29, 1822, and returned by the President on 
May 4, which caused him to follow his veto message with 
a comprehensive statement of the "Views of the President 
of the United States on the subject of internal improve- 

4* Annals of 15th Congress, 1st Sess., vol. i, pp. 211, 292; Ames, 
p. 260. Martin Van Buren while in the Senate urged a similar 
amendment (1824-1825) and there were others who proposed like 
resolutions. Ames, p. 261. 

4^ See above, p. 67. 

46 Annals of 15th Congress, 2d Sess., pp. 544, 244.3. 

*7 3 Stat. L. 412, 426, 500, 560, 604, 728. 



POWER OF CONGRESS TO ESTABLISH POSTROADS 75 

ments,"*^ the most elaborate constitutional discussion ever 
sent to the Capitol from the White House. 

Monroe was of the opinion that Congress had the right 
to make appropriations for roads, with the consent of the 
states through which they were to pass, but that it did not 
have sovereign and jurisdictional rights to construct roads 
or to repair and keep them free from obstructions. This 
doctrine Von Hoist calls a '' quibble on words," but " it has 
become an established one that Congress may appropriate 
money in aid of matters which the federal government is not 
constitutionally able to administer and regulate," and in this 
respect, therefore, Monroe was correct.*^ 

The advocates of construction and of efficient jurisdiction 
after the roads had been made, derived the authority of 
Congress from several clauses in the Constitution, among 
them the grant '' to establish postoffices and postroads." To 
this clause, Monroe gave an exhaustive treatment. 

"What is the just import of these words, and the extent 
of the grant ? " he asked. " The word ' establish ' is the 
ruling term; 'postoffices and postroads' are the subjects, on 
which it acts. The question, therefore, is, what power is 
granted by that word? The sense, in which our words are 
commonly used, is that, in which they are to be understood 
in all transactions between public bodies and individuals. 

*8 Richardson, vol. ii, p. 142. Monroe's veto was not unexpected. 
He had sounded a warning in his annual message of 1822 when he 
said that a power to execute a system of internal improvements, 
" confined to great national purposes and with proper limitations, 
would be productive of eminent advantage to our Union," and thus 
" thought it advisable that an amendment of the Constitution to that 
effect should be recommended to the several states." Ibid., vol. 
ii, p. 191. 

*9 I Willoughby on the Constitution, 588. As late as 1827 Madison 
wrote to Monroe concerning the Cumberland Road : " I cannot as- 
sign the grounds assumed for it by Congress, or which produced his 
[Jefferson's] sanction. I suspect that the question of constitution- 
ality was but slightly, if at all, examined by the former, and that the 
executive consent was doubtingly and hesitatingly given. Having 
once become a law and being a measure of singular utility, addi- 
tional appropriations took place of course under the same admin- 
istration, and with the accumulated impulse thus derived, were con- 
tinued under the succeeding one, with less critical investigation, 
perhaps, than was due to the case." Madison, Works, vol. iii, p. 55. 



76 THE POSTAL POWER OF CONGRESS 

The intention of the parties is to prevail, and there is no 
better way of ascertaining it, than by giving to the terms 
used their ordinary import." 

Among enlightened citizens, Monroe went on, there would 
be no difference of opinion ; " all of them would answer, 
that a power was thereby given to Congress to fix on the 
towns, court-houses, and other places, throughout our 
Union, at which there should be postoffices ; the routes by 
which the mails should be carried from one postoffice to 
another, so as to diffuse intelligence as extensively, and to 
make the institution as useful, as possible ; to fix the postage 
to be paid on every letter and packet thus carried to support 
the establishment; and to protect the postoffices and mails 
from robbery, by punishing those, who should commit the 
offence. The idea of a right to lay off the roads of the 
United States, on a general scale of improvement; to take 
the soil from the proprietor by force; to establish turnpikes 
and tolls, and to punish offenders in the manner stated 
above, would never occur to any such person. The use of 
the existing road, by the stage, mail carrier, or postboy, in 
passing over it, as others do, is all that would be thought of ; 
the jurisdiction and soil remaining to the state, with a right 
in the state, or those authorized by its legislature, to change 
the road at pleasure." 

This interpretation, the message went on to declare, was 
supported by the modification of the postal grant in the 
Articles of Confederation, as it appeared in the Constitution. 
" Had it been intended to convey a more enlarged power in 
the Constitution," said Monroe, "than had been granted in 
the Confederation, surely the same controlling term [estab- 
lish] would not have been used ; or other words would have 
been added, to show such intention, and to mark the extent, 
to which the power should be carried. ... It would be 
absurd to say, that, by omitting from the Constitution any 
portion of the phraseology, which was deemed important in 
the Confederation, the import of that term was enlarged, 
and with it the powers of the Constitution, in a proportional 



POWER OF CONGRESS TO ESTABLISH POSTROADS // 

degree, beyond what they were in the Confederation. The 
right to exact postage and to protect the postoffices and 
mails from robbery, by punishing the offenders, may fairly 
be considered, as incidents to the grant, since, without it, the 
object of the grant might be defeated. Whatever is abso- 
lutely necessary to the accomplishment of the object of the 
grant, though not specified, may fairly be considered as in- 
cluded in it. Beyond this the doctrine of incidental power 
cannot be carried." Monroe then enters upon a considera- 
tion of what the colonists and framers of the Constitution 
understood to be comprehended in the postal power, and 
concludes : 

" If the United States possessed the power contended for 
under this grant, might they not, in adopting the roads of 
the individual states for the carriage of the mail, as has been 
done, assume jurisdiction over them, and preclude a right to 
interfere with or alter them? Might they not establish 
turnpikes, and exercise all the other acts of sovereignty, 
above stated, over such roads, necessary to protect them 
from injury, and defray the expense of repairing them? 
Surely, if the right exists, these consequences necessarily 
followed, as soon as the road was established. The ab- 
surdity of such a pretension must be apparent to all, who 
examine it. In this way, a large portion of the territory of 
every state might be taken from it; for there is scarcely a 
road in any state, which will not be used for the transporta- 
tion of the mail. A new field for legislation and internal 
government would thus be opened."^° 



^^ The validity of Monroe's argument is treated below, p. 8i. 
Perhaps it may not be amiss to add that I have not attempted an 
exhaustive consideration of congressional activity in respect to road 
construction. This has been done by Nelson, Presidential Injfluence 
on the Policy of Internal Improvements, and Young, A Political 
and Constitutional Study of the Cumberland Road. There are also 
excellent and less specialized accounts in Babcock, The Rise of 
American Nationality, ch. xv. Turner, The Rise of the New West, 
ch. xiii (American Nation, vols. 13 and 14), and Schouler, History 
of the United States, vol. iii. My sole purpose has been to treat 
congressional action and presidential opinion from their constitu- 
tional aspects in relation to the power to establish postoffices and 
postroads. 



yS THE POSTAL POWER OF CONGRESS 

While the President's attitude stopped Congress from 
actually constructing roads, frequent appropriations were 
granted to be applied under the direction of the states. 
Perhaps the most important of these was in the act passed 
in 1824 to have surveys made of such roads and canals as 
in the opinion of the President were of value for military, 
commercial and postal purposes. ^^ 

Conflict over the constitutional problem, and the distinc- 
tion between appropriation and construction, were, however, 
abandoned by John Quincy Adams who was a stanch advo- 
cate of federal aid,^^ but the discussion was revived by 
Jackson, who vetoed six bills,^^ the most important of which 
provided for a government subscription of $150,000 to pur- 
chase stock in the Maysville, Washington, Paris and Lexing- 
ton Turnpike Company, a Kentucky corporation. The ac- 
tion of the President did not come as a surprise for in his 
first annual message he had told Congress that the mode of 
internal improvements, " hitherto adopted, has by many of 
our fellow citizens been deprecated as an infraction of the 
constitution, while by others it has been viewed as inex- 
pedient. All feel that it has been employed at the expense 
of harmony in the legislative councils. "^^ 

Furthermore, Jackson thoroughly disapproved of the gov- 
ernment's becoming a minority stockholder in a semi-private 
enterprise which would receive profits through the payment 
of tolls. He held it to be not only "highly expedient, but 
indispensably necessary, that a previous amendment of the 
Constitution, delegating the necessary power and defining 
and restricting its exercise with reference to the sovereignty 
of the states, should be made."^^ Otherwise there would be 
a continuance of congressional uncertainty as to the exist- 
ence of the power. He considered the general question in 

51 4 Stat. L. 71 ; for the list of appropriations, see Nelson, p. 57 ; 
see also Lalor, Cyclopaedia of Political Science (Internal Improve- 
ments), vol. ii, p. 568. 

52 Richardson, vol. ii, p. 281. 

53 Mason, The Veto Power, pp. 143, 145. 
5* Richardson, vol. ii, p. 452. 

55 Ibid., vol. ii, p. 492. 



POWER OF CONGRESS TO ESTABLISH POSTROADS 79 

two aspects : ( i ) as "to the power of making internal im- 
provements within the limits of a state, with the right of 
territorial jurisdiction, sufficient at least for their preserva- 
tion and use" and (2) as to the power of "appropriating 
money in aid of such works when carried on by a state or 
by a company in virtue of state authority, surrendering the 
claim of jurisdiction."^^ He beheved Congress could ap- 
propriate directly for national, not local, purposes ; the other 
power he firmly denied. 

After Jackson there were other vetoes of internal im- 
provement bills, but they were based largely upon the dis- 
tinction between national and local objects. Road con- 
struction, moreover, gave way to river and harbor develop- 
ment, and there was little, if any, discussion of the meaning 
of the postal clause. Congress asserted a broad power over 
postroads designated by it, and there was little objection; 
on the few occasions that the matter came before the courts, 
the power was sustained. In 1862 Congress gave the Presi- 
dent authority when in his judgment the public safety re- 
quired its exercise, to take possession of all railroads and 
telegraphs and to place their employees under military con- 
trol, so that the lines would be " considered as a postroad 
and a part of the military establishment ©f the United 
States, subject to all the rules and restrictions imposed by 
the rules and articles of war."^^ Any interference with 
the exercise of this authority was made a crime. Com^ 
pensation to the railroad and telegraph companies was to be 
fixed by three commissioners, subject to approval by Con- 
gress. This authorization, however, was based upon the 
war, as well as on the postal power, and when Congress 
came to charter railroads and bridge companies, it based its 
right largely on the commerce clause, with the postal and 
war grants as ancillary sources.^^ 

Recent evidences of congressional action, based upon the 

56 Richardson, vol. iii, p. 119; Bassett, Life of Andrew Jackson, 
vol. ii, pp. 483-495- 
" 12 Stat. L. 334. 
5* See also Act of July i, 1862; 12 Stat. L. 489. 



80 THE POSTAL POWER OF CONGRESS 

postroads clause, are to be seen in the good roads move- 
ment, and in 191 2 Congress appropriated five hundred thou- 
sand dollars for "improving the condition of roads to be 
selected by them [the secretary of agriculture and the post- 
master general] over which rural delivery is or may here- 
after be established, such improvement to be for the purpose 
of ascertaining the increase in the territory which could be 
served by each carrier as a result of such improvement, the 
possible increase of the number of delivery days in each 
year," etc. But it is provided that the state in which the 
improvements are to be made "shall furnish double the 
amount of money for the improvement of the road or roads 
so selected."^^ The results of the scheme have not been 
very satis factory ,^° but proposals are made for other, and 
more extensive federal undertakings. Finally it is possible, 
in some measure at least, to base upon the postal power the 
Act of March 12, 1914, which authorizes "the president of 
the United States to locate, construct and operate railroads 
in the Territory of Alaska."^^ 

Judicial Determinations. — The power of Congress to con- 
struct roads and canals did not, in the early days of its 
assertion and denial, come before the Supreme Court of the 
United States ; in fact, the question has never been directly 
passed upon by the Court, and long before it was incidentally 
considered, largely in the cases upholding the right of emi- 
nent domain and its delegation to railroad corporations with 
federal charters, the constitutional problem, as Madison said 
in rejecting the bank bill of 1814, was " precluded by re- 
peated recognitions, under varied circumstances, of the 
validity of the exercise of a power to establish a bank by 
Congress, in acts of the legislative, executive, and judicial 
branches of the government, accompanied by indications in 

59 37 Stat. L. 552. 

60 Sloane, Party Government in the United States of America, 
p. 316. 

61 Public, No. 69, 63d Congress ; Act of March 12, 1914. See also 
63d Cong., I Sess., S. Kept. No. 65 ; 63d Cong., 2d Sess., H. Rept. 
No. 341, and Weems, " Government Railroads in Alaska," North 
American Review, April, 1914. 



POWER OF CONGRESS TO ESTABLISH POSTROADS 8 1 

different modes of a concurrence of the general will of the 
nation."^^ Such a test, however, is by no means adequate. 

For a time the question of congressional power was acute, 
and its existence was not acknowledged, even by some who 
cannot be called strict constructionists. The opinions held 
by Congress and the executive have already been reviewed ; 
but Monroe's elaborate veto message on the " gate bill " gave 
the Supreme Court justices an opportunity to express their 
views informally, for he sent a copy of his paper to each 
member of the Court. In his reply Justice Johnson inti- 
mated that the doctrine of McCuUoch v. Maryland®^ com- 
mitted the Court to upholding a power in Congress to con- 
struct roads for military and postal purposes ; Marshall con- 
sidered the question one '' on which many divide in opinion, 
but all will admit that your views are profound and that 
you have thought much on the subject." Story was non- 
committal, and thus one of the few attempts to get an in- 
formal expression of opinion from the Supreme Court was 
a failure.^ 

It is difficult to see how, logically, there can be any doubt 
as to a very wide authority in Congress. A fair interpreta- 
tion of the word " establish " comprehends " construction " 
or at Icp.st some'jiinj^- more than ''designation"; otherwise 
it would have been futile for the Articles of Confederation 
and the Constitution to give Congress powers under which 
it has undertaken to " establish " navy hospitals, trading 
houses with the Indians, inferior courts, rules of capture, 
and regulations of trade. The second portion of the postal 
clause did not appear in the Articles of Confederation, and 
the grant in the Constitution was absolute, with no limita- 

62 Richardson, vol. ii, p. 555. 

634 Wheat. 316 (1819). 

®* In his Commentaries, Story devotes twenty pages to an exposi- 
tion of both sides of the controversy and concludes : ** The reader 
must decide for himself, upon the preponderance of the argument." 
Vol. iii, p. 46. The incident of submitting the message to the Su- 
preme Court is given in detail by Schouler, History of the United 
States, vol. iii, p. 254 ff. As to advisory opinions, see i Willoughby 
on the Constitution, 13, and Thayer, Cases on Constitutional Law, 
vol. i, p. 175. 

6 



82 THE POSTAL POWER OF CONGRESS 

tions as to state action. A restricted interpretation, applied 
to the first part of the clause, as demanded by consistency, 
would give Congress authority to provide postoffices, but 
without mails, carriers, routes, secure transmission, or 
revenue. That Congress in fact had the power to construct 
roads has been made evident, I think, by the debates on the 
various measures that were proposed. 

But as has been seen in the legislation concerning the 
Cumberland Road, the consent of the states was required 
before construction could be started, and limitations were 
imposed on the federal power. So also, it was at first main- 
tained that Congress did not have the right to keep the roads 
open, in repair, and to impose tolls for their use, whether 
they had been constructed under national authority or had 
simply been designated as mail routes. For example, the 
Act of March 2.6, 1804, provided *' that whenever it shall 
be made to appear to the satisfaction of the postmaster 
general that any road established by this or any former act, 
as a postroad, is obstructed by fences, gates or bars, other 
than those lawfully used on turnpike roads, to collect their 
toll, and not kept in good repair with proper bridges and 
ferries, where the same may be necessary it shall be the 
duty of the postmaster general to report the same to Con- 
gress, with such information as can be obtained, to enable 
Congress to establish some other road, instead of it, in the 
same main direction. "^^ 

In 1812 Gallatin made a report to the President on the 
Cumberland Road and referred to the necessity of levying 

®^ 2 Stat. L. 275, 2']']. In 1810 the postmaster general was given 
authority to " provide for the carriage of the mail on all postroads 
that are or may be established by law," and to " direct the route or 
road, when there are more than one between places designated by 
law for a postroad, which route shall be considered as the post- 
road " ; and the lines designated in contracts for carrying the mail 
were to be considered postroads within the provisions of the act. 
2 Stat. L. 592. But in 1825 while the authority of the postmaster 
general to designate different routes was continued, there was a 
further provision that in cases not covered by contracts, " the road, 
on which such mail shall be transported, shall become a postroad 
and so continue until the transportation thereon shall cease." 4 
Stat. L. 102. 



POWER OF CONGRESS TO ESTABLISH POSTROADS 83 

tolls sufficient to keep certain portions in repair ; but this, he 
said, could be done "only under the authority of the state 
of Maryland. "^^ The next year the superintendent of the 
road reported to Gallatin that he expected the Maryland 
legislature to pass a law, " authorizing the President to 
receive toll, for the purpose of repairing the road, and like- 
wise against abuses which are common on all roads of the 
kind to prevent which laws have been found necessary."^^ 
Secretary Dallas was of the same opinion, and in 1815 told 
the House Committee on the Cumberland Road that Con- 
gress had no authority to make provision for tolls and the 
prevention of abuses. " They can only proceed," he said, 
" from the legislatures of the states through which the road 
passes, and consist of an authority for the erection of toll 
gates, and the collection of a toll sufficient to defray the 
expenses of repair, and the infliction of penalties upon 
persons who shall cut, break up, or otherwise destroy or 
injure the road."^^ 

The House Committee, however, held that since a com- 
pact had been entered into between the federal government 
and the states. Congress had the right to legislate in order 
to carry out its undertaking to open and maintain the road. 
"If the right to punish these offences belongs to the national 
government," said the committee, " it may be effected with- 
out the passage of any law, by an indictment or information 
in the courts of the United States, or by enacting statutory 
provisions fixing the penalties, it being a fundamental right 
of the judiciary inherent in every government to punish all 
offences against the laws passed in pursuance of a delegated 
power independently of express legislative sanctions."^^ 

After President Monroe's veto, the Cumberland Road be- 
came sadly in need of repairs, and again Congress considered 
the question of jurisdiction, — whether the right to preserve 

*« Miscellaneous State Papers, vol. ii, p. 175. 
"■^ Ibid., p. 205. 
®^ Ibid., p. 272. 

69 Ibid., p. 301. See U. S. v. Hudson & Goodwin, 7 Cranch 32 
(1812). 



84 THE POSTAL POWER OF CONGRESS 

was incidental to the right to establish. The states passed 
laws to protect the road against injuries and appropriated 
money for improvements, but the sums provided were in- 
adequate^^ and soon a disposition was shown to consent to 
the assumption by Congress of complete control over the 
Road. The Pennsylvania legislature passed a resolution 
(1828) giving the federal government permission to collect 
tolls within the commonwealth, with the reservation that the 
whole amount collected should be devoted to repairs J^ 

Monroe had desired cooperation between the national and 
local authorities. In his message of December 2, 1823, he 
urged "an arrangement with the several states through 
which the Road passes, to establish tolls, each within its 
limits, for the purpose of defraying the expense of future 
repairs and providing also by suitable penalties for its pro- 
tection against future injuries. "^^ This portion of the 
message was considered by the House Committee on Roads 
and Canals, whose opinion it was that Congress had itself 
the right to charge tolls and punish offences ; the committee 
could not approve of an arrangement by which the states 
might charge tolls : uniformity and one jurisdiction were 
eminently desirable.'^^ Yet in 1 828-1 829 when the whole 
question of control was again threshed out in Congress, any 
federal right, either absolutely or by virtue of state per- 
mission, to charge tolls, was still denied. Congress simply 
appropriated $100,000 for the repair of the road ; Monroe's 
distinction between appropriation and control was adhered 
to.^* 

The states, moreover, still asserted plenary authority. In 
1833 the Maryland legislature gave the President authority 
to make a change in the Cumberland Road^^ and in 1834 
Illinois consented to the extension of the national road 
"through the territory of said state so as to cross the 

''^ Young, The Cumberland Road, p. 79. 

71 Laws of Pennsylvania, 1827-28, p. 500. 

72 Richardson, vol. ii, p. 217. 

73 i8th Cong., 1st Sess., House Rept. No. 118. 

74 Act of March 3, 1829; 4 Stat. L. 363. 

75 Laws of Maryland, 1831-1832, ch. 55. 



POWER OF CONGRESS TO ESTABLISH POSTROADS 85 

Mississippi River at the town of Alton and no other point."^^ 
For various reasons the road was not constructed, but Con- 
gress was several times memorialized to take the desired 
action^^ and in 1844 the Senate Committee on Roads and 
Canals, having under consideration a bill to extend the high- 
way to Alton, made a favorable recommendation and pointed 
out the fact that the consent of the states affected was a 
necessary preliminary before actual construction could 
begin. 

" The right of the state of Illinois to give or withhold her 
assent to the construction of the road within her limits," 
said the committee's report, "cannot be questioned in view 
of the course pursued by the general government to obtain 
the consent of other states. "^^ Reports to identical effect 
were made during the second session of the 28th Congress 
(January 15, 1845) ^^^ the second session of the 29th Con- 
gress (January 16, 1847),^® the second report being accom- 
panied by a strong letter from Senator Semple of Illinois, 
who pointed out that his state would never consent to any 
route other than the one which had been recommended in 

1834- 

Meanwhile definitive action had been taken during Jack- 
son's administration, as a result of his determined opposi- 
tion to internal improvements and denial of federal authority 
to construct roads. " Annual appropriations for the repair 
of the road were being made, but this method could not con- 
tinue indefinitely, inasmuch as tolls could not be levied by 
the United States for repairs. Because of the lack of 
jurisdiction, a resort to state control, with the consent of 
Congress became an absolute necessity. "^^ Acts of the 
Pennsylvania, Maryland, Ohio and Virginia legislatures 
were, therefore, passed, and congressional assent was given 
to the erection of toll gates and repairs by the states, with the 

'■^13 Congressional Debates, 1132. 
■^724111 Cong., 1st Sess., Sen. Doc. No. 196. 
■^8 28th Cong., 1st Sess., Sen. Doc. No. 324, p. 7. 
'9 28th Cong., 2d Sess., Sen. Doc. No. 41, and 29th Cong., 2d Sess., 
Sen. Doc. No. 70. 
^^ Young, The Cumberland Road, p. 87. 



S6 THE POSTAL POWER OF CONGRESS 

provision in the compact that no charge should be made for 
the passage of United States mails, troops or property. In 
1879 the control of the states was made complete and 
unreserved. Yet the original acts of surrender recognized 
" either a proprietary or jurisdictional interest, or both, in 
the United States, as follows : ( i ) something was sur- 
rendered; (2) surrender was made by 'compacts' which 
regulated the number of toll gates and the rates of toll; (3) 
provision was made for the United States to resume its pro- 
prietary or jurisdictional interest at pleasure."^^ 

But before the legal questions arising out of this sur- 
render were passed upon by the Supreme Court of the 
United States, the whole problem of congressional power 
and the rights of the states was carefully considered by the 
Kentucky Court of Appeals, whose opinion,^^ treating points 
primae impressionis, is remarkably well considered. The 
particular question to be decided was whether a contractor 
for carrying the mail between points within the state on a 
turnpike road had any right of exemption from the tolls, 
exacted under the company's charter from other persons 
for the transit of their horses and stages. The court held 
that the tolls should be paid. 

It recognized that the postal power "being necessarily 
exclusive, plenary and supreme, no state can constitutionally 
do, or authorize to be done, any act which may frustrate, 
counteract, or impair the proper and effectual exercise of it 
by national authority. From these axiomatic truths it fol- 
lows as a plain corollary that the general government has the 
right to transport the national mail whenever and wherever 
the national Congress, in the constitutional exercise of its 
delegated power over postoffices and postroads shall have 
prescribed." But, said the court, this power was not un- 
limited, and could not appropriate private property for public 

81 Young, p. 98, and passim for an able account of the whole con- 
troversy over jurisdiction. I have here attempted to present only 
the points necessary for an understanding of the constitutional prob- 
lems that the courts were called upon to consider, 

82 Dickey v. Maysville, etc., Co., 7 Dana (37 Ky.) 113 (1838). 



POWER OF CONGRESS TO ESTABLISH POSTROADS 8/ 

use without just compensation. If the turnpike was con- 
sidered as private property in view of the company's fran- 
chise, tolls should be paid by the mail contractor ; considering 
the turnpike as a public state road, the court reached the 
same conclusion, which, it pointed out, would not have been 
modified had Congress seen fit to designate this particular 
road as a mail route. Anyone doubting the logic of this, the 
court said, " should also doubt whether his own house might 
not be taken and used as a postoffice without his consent 
and without any compensation." 

The court then proceeded, obiter, to explain its under- 
standing of the postroads power. According to reason and 
philology, the import of " establish " was declared to be, not 
merely " designate " but " found, prepare, make, institute 
and confirm." " So too," the court held, *' as roads and 
good roads are indispensable to the effectual establishment 
of postroads, the supreme power to ' establish postroads ' 
necessarily includes the power to make, repair and preserve 
such roads as may be suitable. . . ." Congress therefore 
was considered to have the power to open roads and build 
bridges when necessary ; there was no question of constitu- 
tional right, simply of expediency.^^ 

''Unless Congress shall elect to exercise its right of emi- 
nent domain, and buy a state road, or make one, or help to 
make or repair it, the constitution gives no authority to use 
it as a postroad without the consent of the state or the 
owner, without making just compensation for the use." 
Here was acknowledgment of an authority more far reach- 
ing than even the more liberal contemporary opinion gave to 
Congress; the court recognized a right of eminent domain 
to take over a road, but until this was exercised, the mails 
were subject to tolls. 

When, seven years later, the Supreme Court of the United 
States passed upon the toll question which arose under the 

83 « Every postroad is a national road," said the court. "So far as 
it is a postroad, it is as national as the Chesapeake Bay or the 
Mississippi River." 



88 THE POSTAL POWER OF CONGRESS 

compact ceding the Cumberland Road to the states,^* there 
was the same opportunity to make a definite pronounce- 
ment as to the authority of Congress to engage in road 
construction ; in its opinion, however, the Court made no 
use of this opportunity, although a dissentient justice voiced 
his views that the power of Congress was not so great as 
that asserted in the Dickey case. 

The act of the Ohio legislature in taking over the Cum- 
berland Road specifically provided that tolls should not be 
collected for the passage of the mails ; but the Pennsylvania 
law was more general, declaring that "no toll shall be re- 
ceived or collected for the passage of any wagon or carriage 
laden with the property of the United States. . . ." The 
Maryland act was precisely the same as this, while the Vir- 
ginia statute followed the Ohio law. In 1836, however, 
Pennsylvania declared that the exemption should be only 
in proportion to the amount of property belonging to the 
United States, and " that in all cases of wagons, carriages, 
stages or other modes of conveyance, carrying the United 
States mail, with passengers or goods, such wagon, stage, 
or other mode of conveyance shall pay half-toll upon such 
modes of conveyance." 

The validity of this legislation was the question presented 
to the Supreme Court, and in its decision the Court could 
well have entered upon a discussion of the power of Congress 
in the premises. But Chief Justice Taney, who delivered 
the opinion, was at pains to point out, "that the constitu- 
tional power of the general government to construct this 
road is not involved in the case before us ; nor is the court 
called upon to express any opinion on that subject; nor to 
inquire what were the rights of the United States in the 
road previous to the compacts hereinbefore mentioned." 

Taney simply held, therefore, that "the United States 
have unquestionably a property in the mails"; that this 
property was exempted from the payment of tolls by the 
terms of the compact, but this exemption should not apply to 

^*Seabnght v. Stokes, 3 Howard 151 (1845). 



POWER OF CONGRESS TO ESTABLISH POSTROADS 89 

other property in the same vehicle, nor to any person unless 
in the service of the United States. Finally, in answer to 
the objection that small parcels might be sent by a num- 
ber of conveyances to relieve them from the payment of 
tolls, Taney held that "the United States cannot claim an 
exemption for more carriages than are necessary for the 
safe, speedy, and convenient conveyance of the mail." 

From Taney's judgment. Justice McLean dissented, pri- 
marily on the ground that "the mail of the United States 
is not the property of the United States," and that charging 
tolls for its passage was not in violation of the compact. 
Justice Daniels, however, objected upon different grounds, 
and declared that it was necessary to consider "the opera- 
tion and effect of the compact insisted upon as controlled 
and limited by the powers of both contracting parties." 

" I hold then," he declared, " that neither Congress nor the 
federal government in the exercise of all or any of its 
powers or attributes possesses the power to construct roads, 
nor any other description of what have been called internal 
improvements within the limits of the states. That the 
territory and soil of the several states appertain to them by 
title paramount to the Constitution, and cannot be taken, 
save with the exception of those portions which might be 
ceded for the seat of the federal government and for sites 
permitted to be purchased for forts, arsenals, dockyards, 
etc. That the power of the federal government to acquire, 
and that of the states to cede, to that government portions of 
their territory, are by the Constitution limited to the in- 
stances above adverted to, and that these powers can neither 
be enlarged, nor modified, but in virtue of some new faculty 
to be imparted by amendments of the Constitution. 

"I believe that the authority vested in Congress by the 
Constitution to establish postroads, confers no right to open 
new roads, but implies nothing beyond a discretion in the 
government in the regulations it may make for the post- 
office department for the selection amongst the various 
routes, whilst they continue in existence, of those along 



90 THE POSTAL POWER OF CONGRESS 

which it may be deemed most judicious to have the mails 
transported. I do not believe that this power given to 
Congress expresses or implies anything peculiar in relation 
to the means or modes of transporting the public mail, or 
refers to any supposed means or modes of transportation 
beyond the usual manner existing and practised in the 
country, and certainly it cannot be understood to destroy or 
in anywise to afifect the proprietary rights belonging to in- 
dividuals or companies vested in those roads. It guarantees 
to the government the right to avail itself of the facilities 
offered by those roads for the purposes of transportation, 
but imparts to it no exclusive rights — it puts the govern- 
ment upon the footing of others who would avail themselves 
of the same facilities." 

For these reasons, "the government could legally claim 
no power to collect tolls, no exemption from tolls, nor any 
diminution of tolls in their favor, purely in consequence of 
their having expended m^oney on the road, and without the 
recognition by Pennsylvania of that expenditure as a condi- 
tion in any contract they might make with that state." 
Nevertheless the United States could contract with Penn- 
sylvania, and so Justice Daniels examined the terms of the 
agreement, coming to the conclusion that by its terms. United 
States mail was not exempt from toll charges.^^ 

While the authority of the majority opinion in this case 
is somewhat lessened by the fact that the argument was as 
to the meaning of the compact, it was held, impliedly at 
least, that in order to carry out one of its delegated powers, 
— the establishment of postoffices and postroads, — the United 

85 See also Neil v. Ohio, 3 How. 720 (1845), and Achison v. Hud- 
dleson, 12 How. 293 (1851). Congress, under an act approved Feb- 
ruary 25, 1867, granted the state of Oregon certain lands for the 
construction of a military road, with the reservation that it should 
be free for the passage of federal property, troops or mails. An 
incorporated company undertook construction of the road, but was 
not permitted to charge tolls. It was provided in the grant that 
bridges should be constructed to permit the use of the road by 
wagons. This was done by parties other than the road company, 
and when mail contractors paid them tolls they had a right of action 
for reimbursement from the feasor company. Schutz v. Dalles 
Military Road Co., 7 Or. 259 (1879). 



POWER OF CONGRESS TO ESTABLISH POSTROADS 9 1 

States might, by compact, enter upon a scheme of Internal 
improvements. Furthermore, the court, by holding that the 
general government had the right to enter into the compact 
of surrender, recognized an original federal interest in the 
Cumberland Road. The clear import of the majority 
opinion is, I think, that if Taney had considered it necessary 
to pass upon the point. Congress would have been accorded 
the right to construct postroads, and this would have in- 
cluded authority to charge tolls for the use of the highways 
by others than the postoffice department.^® 

These adjudications were carried a long step further 
when the Supreme Court asserted the federal right of emi- 
nent domain which had been foreshadowed in the Dickey 
case, but not exercised by Congress.^'' In 1864 the North- 
em Pacific Railroad was incorporated, and lands were 
granted to aid in the construction, but the act provided that 
the company " shall obtain the consent of the legislature of 
any state through which any portion of said railroad line 
may pass, previous to commencing the construction thereof." 
Congress reserved the right to appeal or amend the act, 
"to secure to the government at all times (but particularly 
in time of war) the use and benefits of the same for postal, 
military and other purposes."^^ In 1868, however. Con- 
gress undertook improvements in the Mississippi River, and 
authorized its agents to take possession of the necessary 
materials " after having first paid or secured to be paid, the 

8^ Young, The Cumberland Road, p. 100, The question of state 
tolls on mail carriers will be treated in the chapter on " The Power 
of the States to Interfere with the Mails." 

87 " The government of the United States cannot construct a post- 
road within a state of this union without its consent; but Congress 
may declare, that is, establish, such a road already opened and made 
a public highway by the direct or indirect authority of the state. . . . 
The United States have the mere right of transit over these roads 
for the purpose of carrying the mail, and in case of obstructing this 
right their laws provide an adequate remedy. . . . The act of Con- 
gress making all railroads postroads means only such as have char- 
ters from the several states." Cleveland, P. & A. R. Co. v. FrankHn 
Canal Co., 5 Fed. Cas. 1044 (1853). 

88 13 Stat. L. 365. 



92 THE POSTAL POWER OF CONGRESS 

value thereof which may have been ascertained in the mode 
provided by the laws of the state."^^ 

When the question came before the courts there was little 
hesitancy in holding that Congress had a right of eminent 
domain. The Circuit Court for the Southern District ot 
Ohio declared that "the constitutional provisions giving to 
Congress authority to establish postoffices and postroads, 
and to make all laws for carrying into effect the enumer- 
ated powers, taken together with the declaration that all laws 
made in pursuance of the Constitution shall be the supreme 
law of the land, invest Congress with authority to condemn 
lands situated within a state for use as a postoffice site."^° A 
holding to the same effect was made by the Supreme Court 
of the United States which declared : 

" It is true, this power of the federal government has not 
heretofore been exercised adversely; but the non-user of a 
power does not disprove its existence. ... If the United 
States have the power, it must be complete in itself. It can 
neither be enlarged nor diminished by a state. Nor can any 
state prescribe the manner in which it must be exercised. 
The consent of a state can never be a condition precedent to 
its enjoyment."^^ 

But before this right of eminent domain was recognized, 
a broad legislative control had been assumed over the high- 
ways of the country. In 1838 Congress declared " that each 
and every railroad within the limits of the United States 
which now is, or hereafter may be made and completed, 
shall be a postroute,"^^ and in 1856, the Supreme Court 
(under the commerce clause, however) sanctioned a further 
extension. 

Bridges across the Ohio River at Wheeling were alleged 
by the State of Pennsylvania to be an obstruction of naviga- 
tion and their removal was ordered by the Supreme Court. 

89 15 Stat. L. 124. 

90 U. S. V. Inlots, 26 Fed. Cas. 482 (1873). See also Trombley v. 
Humphrey, 23 Mich. 472 (1871), and i Kent's Comm. 268, Note A. 

91 Kohl V. U. S, 91 U. S. 367 (1875). 

92 5 Stat. L. 283. 



POWER OF CONGRESS TO ESTABLISH POSTROADS 93 

The decree had not been executed when, by act of Congress 
(1852), the bridges were "declared to be lawful structures 
in their present positions and elevations, and shall be so held 
and taken to be, anything in the law or laws of the United 
States to the contrary notwithstanding," and further, " that 
the said bridges be declared to be and are established post- 
roads for the passage of the mails of the United States." 

Later, the main bridge being blown down, the Supreme 
Court granted an injunction restraining the reconstruction. 
The company disregarded the order and upon motions by 
the plaintiff to attach the defendant's property for contempt, 
and by the company to dissolve the injunction, the Supreme 
Court held that the act of Congress vacated the decree and 
superseded its effect and operation. The Court said : 

" We do not enter upon the question, whether or not Con- 
gress possess the power, under the authority of the Con- 
stitution, ' to establish postoffices and postroads ' to legalize 
this bridge; for, concluding that no such powers can be 
derived from this clause, it must be admitted that it is, at 
least, necessarily included in the powers conferred to regu- 
late commerce among the several states. "^^ 

By the act of March 2, 1861,®* moreover, the monopoly 
provisions of earlier statutes were extended to all post- 
routes, already or thereafter established, but letter carrier 
routes within cities did not become postroads until so de- 
clared by Congress in 1872, and at the present time, in addi- 
tion to railroads and routes for the collection and delivery of 

^* Pennsylvania v. Wheeling Bridge Co., 18 How. 421 (1856); 
see also 13 How. 518 (1852). 

9* 12 Stat. L. 205. See Blackham v. Gresham, 16 Fed. Rep. 609 
(1883), and U. S. v. Kochersperger, 26 Fed. Cas. 803 (i860), where 
it was said : " The public streets of a municipal town over which the 
mail may be carried in any of the routes established by Congress as 
postroads, are doubtless, postroads for the passage of the mail. 
Whether the streets of such a town can be established by Congress 
as postroads for any other purpose is questionable. ... So far as 
the prohibition of private letter carrying within the limits of such a 
town may be concerned, the legislative power which is wanting 
under the head of postroads, may, perhaps, be incidental to the 
execution of the power to establish postoffices. If this be so, the 
point may be of little ultimate practical importance." Blackham v. 
Gresham upheld the act of 1861. • 



94 THE POSTAL POWER OF CONGRESS 

the mail, the following are established as postroads: all 
waters of the United States, canals, and plank roads during 
the time the mail is carried thereon ; " the road on which the 
mail is carried to supply any courthouse which may be with- 
out a mail, and the road on which the mail is carried under 
contract made by the postmaster general for extending the 
line of posts to supply mails to postoffices not on any estab- 
lished route, during the time such mail is carried thereon " ; 
and " all public roads and highways while kept up and 
maintained as such."^^ In order to insure the safe passage 
of the mails, the federal government may take all necessary 
measures to remove obstructions and prevent depredations, 
even on the public streets of a town. 

Finally, under three grants in the Constitution, — ^to regu- 
late commerce, to establish postoffices and postroads, and to 
raise and support armies, — Congress has chartered trans- 
continental railway companies and bridge companies. It 
has, moreover, granted to these corporations the power of 
eminent domain to be exercised without the consent or per- 
mission of the states. In holding that the franchises of the 
Union Pacific Railroad Company were federal franchises, 
properly granted, and beyond the power of the state to tax, 
the Supreme Court said : 

" It cannot at the present day be doubted that Congress 
under the power to regulate commerce among the several 
states, as well as to provide for postal accommodations and 
military exigencies, had authority to pass these laws. The 
power to construct, or to authorize individuals or corpora- 
tions to construct, national highways and bridges from state 
to state, is essential to the complete control and regulation 
of interstate commerce. Without authority in Congress to 
establish and maintain such highways and bridges, it would 
be without authority to regulate one of the most important 
adjuncts of commerce. This power in former times was 
exerted to a very limited extent, the Cumberland or National 
Road being the most notable instance. Its exertion was but 

»5 See Postal Laws and Regulations of 1913, p. 605. 



POWER OF CONGRESS TO ESTABLISH POSTROADS 95 

little called for, as commerce was then mostly conducted by- 
water, and many of our statesmen entertained doubts as to 
the existence of the power to establish ways of communica- 
tion by land. But since, in consequence of the expansion 
of the country, the multiplication of its products, the inven- 
tion of railroads and locomotion by steam, land transporta- 
tion has so vastly increased, a sounder consideration of the 
subject has prevailed, and led to the conclusion that Con- 
gress has plenary power over the whole subject. Of course, 
the authority of Congress over the territories of the United 
States, and its power to grant franchises exercisable therein, 
are, and ever have been, undoubted. But the wider power 
was very freely exercised, and much to the general satis- 
faction, in the creation of the vast system of railroads con- 
necting the East with the Pacific, traversing states as well as 
territories and employing the agency of state as well as 
federal corporations."^^ 

Early attempts, then, by Congress to furnish postal facili- 
ties and open up communication through the construction of 
highways for the carriage of the mails, met with denials that 
the power " to establish postroads " meant more than the 
power to designate the roads to be used, and that, even if 
this were not so, any action could be taken without the con- 
sent of the states whose territory was to be used. To permit 
national undertakings, however, Monroe developed the dis- 
tinction that Congress might appropriate for roads to be 
laid out with the consent of the states, but that the national 
government had no jurisdictional rights to construct, repair 
or keep the highways free from obstructions. This dis- 
tinction, which Von Hoist called a " quibble on words," was 
abandoned by John Quincy Adams, who was a stanch advo- 
cate of federal aid, but was revived by Jackson, who be- 
lieved that appropriations could be made for national, but 
not for local purposes. In Congress, during the whole of 
this period, various views were expressed, but the better 

96 California v. Pacific Railroad Co., 127 U. S. i (1888). Cases 
involving these points will be treated in a later chapter on "The 
Extension of Federal Control over Postroads." 



96 THE POSTAL POWER OF CONGRESS 

Opinion, accepted by the authority, if not by the majority, of 
the speakers, was that Congress had powers (occasionally 
exercised) which were broader than the executives were dis- 
posed to concede. 

The continued assertion by the states of plenary authority 
and the failure of Congress to adopt any successful plan by 
which the Cumberland Road might be kept in repair, led 
to compacts of surrender under which the national authori- 
ties gave up all control over this highway. The meaning of 
these compacts was examined by the Supreme Court of the 
United States, and the plain implication of the decisions 
(although definite expressions were not necessary for the 
determination of the particular questions presented) is that 
Congress had the right to construct postroads and to charge 
tolls for their use by others than postal officials. This power 
had already been conceded in an illuminating opinion by the 
Kentucky Court of Appeals, and the subsequent decisions 
recognizing a right of eminent domain in the federal govern- 
ment and sanctioning the federal incorporation of railway 
and bridge companies, are conclusive authority that Con- 
gress had the power which the more liberal of its members 
asserted, but which the states and occasional executives 
denied. That the power to establish postroads comprehends 
the power to construct (compensation being made to the 
states), to levy tolls, and to repair and keep free from 
obstructions, has thus been assured by judicial decisions as 
well as by a fair interpretation of the words of the grant; 
and any fancied taint of unconstitutionality has been re- 
moved from laws which Congress passed under its plenary 
power " to establish postroads," but which exceeded the 
limitations laid down by the strict constructionists, and 
did not come before the Supreme Court for a determination 
of their validity. 



CHAPTER IV 
Limitations on the Postal Power 

Like all grants to Congress, the postal power is not unre- 
strained, but, as the Supreme Court has expressed it, the 
difficulty in setting limits beyond which it may not go, arises, 
"not from want of power in Congress to prescribe the 
regulations as to what shall constitute mail matter, but from 
the necessity of enforcing them consistently with the rights 
reserved to the people, of far greater importance than the 
transportation of the mail."^ One, and perhaps the most 
important, of these rights is involved when restrictions are 
applied to periodical publications (particularly in reference 
to obscene matter and lottery tickets), and the question is at 
once raised as to the freedom of the press, guaranteed 
against abridgment by the second clause of the first amend- 
ment to the Federal Constitution.^ The extent to which this 
limitation has been ignored is a moot question. On the one 
hand, we have the confident assertion of Von Holst^ that 
"the freedom of the press has become a part of the flesh 
and blood of the American people to such an extent, and is 
so conditioned by the democratic character of their political 
and social life, that a successful attack upon it, no matter 
what legal authority it might have on its side, is impossible. 
Even the gigantic power of slavocracy gave up the battle as 
hopeless after the first onslaught." 

On the other hand, Hannis Taylor in his recent work on 
the American Constitution remarks that " little need be said 

1 Ex parte Jackson, 96 U. S. ^2^ (1878). 

2 " Congress shall make no law . . . abridging the freedorn of 
speech or of the press." An executive order, deriving its validity 
from an act of Congress would, of course, be illegal if abridging 
the liberty of the press, even though the act itself did not. 

3 Von Hoist, Constitutional History of the United States, vol. ii, 
p. 127. 

7 97 



98 THE POSTAL POWER OF CONGRESS 

as to the clause forbidding Congress to pass any law 
* abridging the freedom of the press,' as that clause has been 
removed from the Constitution, so far as the mails are con- 
cerned, by the judgment rendered in 1892, In Re Rapier/'^ 
And this extreme view may be said to have received some 
support from a recent decision of the Supreme Court which 
upheld the power of Congress to compel newspapers to pub- 
lish certain information concerning their internal affairs, 
under penalty, for refusal, of being denied the advantages 
of low second class rates.^ Which, then, is the correct view 
as to the inviolability or abrogation of this constitutional 
guarantee in relation to the mails? 

Freedom of the Press. — In the Convention which framed 
the Federal Constitution, Mr. Pinckney, on August 20, 1787, 
submitted a number of propositions among which was a 
guarantee that " the liberty of the Press shall be inviolably 
preserved."® The propositions were referred to the Com- 
mittee of Detail, and when the question again came up for 
consideration on September 14, Mr. Pinckney and Mr. 
Gerry " moved to insert a declaration that the liberty of the 
Press should be inviolably observed." This motion was 
lost, Mr. Sherman remarking that "it is unnecessary. The 
power of Congress does not extend to the Press. "^ 

During the discussion of the Constitution by the States, 
however, the absence of a guarantee of the freedom of the 
press was frequently adverted to. Speaking in the South 
Carolina House of Representatives, Mr. C. C. Pinckney 
said : 

" With regard to the liberty of the press, the discussion of 
that matter was not forgotten by the members of the Con- 
vention. It was fully debated, and the impropriety of say- 
ing anything about it in the Constitution clearly evinced. 



*The Origin and Growth of the American Constitution, p. 230. 

5 Lewis Publishing Co. v. Morgan, 229 U. S. 288 (1913)- 

« Farrand, vol. ii, pp. 334, 341. 

7 Ibid., pp. 617, 618; in Pinckney's plan there was a limitation upon 
Congress to preserve the freedom of the press. Ibid., vol. iii, pp. 
599, 609. A motion was made in the convention to appoint a com- 
mittee to prepare a bill of rights and was unanimously rejected. 
Ibid., vol. ii, p. 582. 



LIMITATIONS ON THE POSTAL POWER 99 

The general government has no powers but what are ex- 
pressly granted to it ; it therefore has no power to take away 
the liberty of the press. That invaluable blessing which 
deserves all the encomiums the gentleman has justly be- 
stowed upon it, is secured by all our state constitutions ; and 
to have it mentioned in our general Constitution would 
perhaps furnish an argument, hereafter, that the general 
government had a right to exercise powers not expressly 
delegated to it."^ 

A different theory was advanced by Hamilton, who, an- 
swering the objection that the Constitution contained no bill 
of rights, and treating specifically the absence of any provi- 
sion safeguarding the press, asked : *' What signifies a 
declaration that ' the liberty of the press shall be inviolably 
preserved ? ' What is the liberty of the press ? W^ho can 
give it any definition which would not leave the utmost lati- 
tude for evasion? I hold it to be impracticable; and from 
this I infer that its security, whatever fine declarations may 
be inserted in any Constitution respecting it, must altogether 
depend upon public opinion, and on the general spirit of the 
people and of the government. . . ."^ 

^8 Farrand, vol. iii, 256; Elliot's Debates, vol. iv, pp. 315, 316. Mr. 
Pinckney obviously overlooked the possibility that the freedom of 
the press might incidentally be limited through the exercise by Con- 
gress of one of its delegated powers, a possibility which became 
stronger when the doctrine of implied powers was developed. Par- 
ticularly was this true in reference to postoffice regulations. 

9 The Federalist, No. 84. In a footnote Hamilton scouts the idea 
that the liberty of the press may be affected by duties on publica- 
tions which might be " so high as to amount to a prohibition. . . . 
We know that newspapers are taxed in Great Britain, and yet it is 
notorious that the press nowhere enjoys greater liberty than in that 
country." The extent of duties, if levied, " must depend on legis- 
lative discretion, regulated by public opinion. ... It would be quite 
as significant to declare that the government ought to be free, that 
taxes ought not to be excessive, etc., as that the liberty of the press 
ought not to be restrained." Newspapers were in fact taxed during 
the Civil War, and revenue to the amount of $980,089 was raised by 
this means. Lalor, Encyclopaedia of Political Science, (Art.„ 
" Press"), vol. iii, 321. 

Commenting upon Hamilton's position. Story remarked : " The 
want of a bill of rights then, is not either an unfounded or illusory 
objection. The real question is not, whether every sort of right or 
privilege or claim ought to be affirmed in a constitution ; but whether 
such, as in their own nature are of vital importance, ought not to 
receive this solemn sanction." Story, Commentaries, vol. iii, p. 721. 



lOO THE POSTAL POWER OF CONGRESS 

A proposal to guarantee the freedom of the press was, 
however, a part of the plan for a bill of rights which 
Madison introduced in Congress on June 8, 1789.^^ Such a 
federal provision had been suggested by the ratifying con- 
ventions of three states, and similar provisions were con- 
tained in nine state constitutions.^^ Madison's proposal was 
amended until it provided that " the freedom of speech and 
of the press . . . shall not be infringed" and its language 
was further modified until it took the form in which it 
became a part of the Constitution. 

Concerning the meaning of the amendment at the time of 
its adoption, there has been little, if any controversy, in spite 
of Hamilton's declaration to the contrary. Blackstone had 
announced a generally accepted rule when he said that 
the liberty of the press "consists in laying no previous re- 
straint upon publications, and not in freedom from censure 
for criminal matter when published. Every freeman has 
an undoubted right to lay what sentiments he pleases before 
the public; to forbid this, is to destroy the freedom of the 
press ; but if he publishes what is improper, mischievous, or 
illegal, he m^ust take the consequence of his own temerity. 
... To punish (as the law does at present) any danger- 
ous or offensive writings, which, when published, shall, on a 
fair and impartial trial be adjudged of a pernicious tend- 
ency, is necessary for the preservation of the peace and 
good order, of government and religion, the only founda- 
tions of civil liberty."^^ 

In the celebrated case of People v. Croswell, Alexander 
Hamilton appearing as counsel for the traverser, laid down 

10 Annals of ist Congress, vol. i, p. 434. 

11 Elliot's Debates, vol. ii, p. 552 ; vol. ili, 659 ; Thorpe, Constitu- 
tional History, vol. ii, 204. 

12 Cooley's Blackstone, Book iv, pp. 151, 152. Lord Kenyon's view 
was practically the same. He said : " A man may publish anything 
which twelve of his countrymen think is not blamable, but he ought 
to be punished if he publishes what is blamable." Rex v. Cuthill, 27 
St. Trials, 675. Cf. Professor Dicey's classic statement : " Freedom 
of discussion is, then, in England little else than the right to write 
or say anything which a jury, consisting of twelve shopkeepers, 
think it expedient should be said or written." Law of the Consti- 
tution (8th ed.), p. 242. 



LIMITATIONS ON THE POSTAL POWER lOI 

the following rule which was unsupported by the English 
common law, but which has been accepted as a proper defini- 
tion by a number of the present-day state constitutions. 
Hamilton said : 

" The liberty of the press consists, in my idea, in pubHsh- 
ing the truth, from good motives, and for justifiable ends, 
though it reflect on the government, on magistrates, or indi- 
viduals. ... It is essential to say, not only that the measure 
is bad and deleterious, but to hold up to the people who is 
the author, that in this our free and elective government, he 
may be removed from the seat of power."^^ And Story 
was of the opinion that the guarantee " is neither more nor 
less, than an expansion of the great doctrine, recently 
brought into operation in the law of libel, that every man 
shall be at liberty to publish what is true, with good motives, 
and for justifiable ends."^* 

The amendment guaranteeing the freedom of the press 
has never been before the Supreme Court of the United 
States in such a manner that a comprehensive consideration 
of its meaning and effect has been entered upon. This is 
true even of those cases in which the issue was as to the 
constitutionality of laws denying newspapers the use of the 
mails for various reasons.^^ In fact, the most important 
dictum of the Supreme Court occurs in a case where a 
federal law was not involved, the Court adopting Black- 
stone's definition and holding that "the main purpose of 
such constitutional provisions is to * prevent all such previous 
restraints upon publications as had been practised by other 
governments,' and they do not prevent subsequent punish- 

"3 Johns. Gas. (N. Y.) 337 (1798); Hamilton's Works (Lodge's 
Ed.), vol. vii, p. 339. See the able analysis of Hamilton's definition 
by Professor Schofield, " Freedom of the Press in the United 
States," in Proceedings of the American Sociological Society, vol. 
ix, p. 67, at p. 88 ff. (1915). 

^* Story, Commentaries, vol. iii, p. 732, To the same effect is Kent, 
Commentaries, vol. ii, lee. 24. A different contention, however, 
seems to have been made by Tucker, Blackstone's Commentaries, 
vol. ii, App,, Note G, pp. 11-30. 

1® These cases will be considered later in this chapter. 



102 THE POSTAL POWER OF CONGRESS 

ment of such as may be deemed contrary to the pubHc 
welfare."^^ 

The cases, as well as the text-writers, seem to settle that 
the first amendment to the Federal Constitution announced 
no new principles ; it must be interpreted in reference to its 
meaning at common law. The principal inhibition upon the 
legislature is in the enactment of previous restraints, but 
even here not absolutely. By the civil law of libel, as it 
was when the Constitution was adopted, the one publishing 
had to answer for personal wrongs, and the criminal law 
could punish for defamatory, obscene, blasphemous or sedi- 
tious libels. To this extent, there could be, and, in fact, 
were, previous restraints. ^^ 

But a recent writer, after an able consideration of the 
early declarations in the light of their history, comes to the 

16 Patterson v, Colorado, 205 U. S. 458 (1907). But see Mr. Jus- 
tice Harlan's dissent, Professor Schofield's criticism of the majority 
opinion (Freedom of the Press in the United States, pp. 110-112), 
and Respublica v. Oswald, i Dall. 319 (1788). In U. S. v. Cruikshank, 
92 U. S. 542 (1876), the court held: "The First Amendment to the 
Constitution . . . like the other amendments proposed and adopted 
at the same time, was not intended to limit the powers of the state 
governments in respect to their own citizens, but to operate upon 
the national government alone. * The scope and application of these 
amendments are no longer subjects of discussion here.' They left 
the authority of the states just where they found it, and added 
nothing to the already existing powers of the United States." 

Professor Schofield is of the opinion that the Slaughter House 
Cases, 16 Wall. 36 (1872), are authority for the principle that "the 
right to publish truth on matters of national public concern is one 
of the privileges and immunities of citizens of the United States 
protected from abridgment by any state by the first prohibition in 
the Fourteenth Amendment." Freedom of the Press in the United 
States, p. 113. It was held in U. S. v. Hall, 26 Fed. Cas. 79 (1871), 
that " the right of freedom of speech, and other rights enumerated 
in the first eight articles of amendment to the Constitution of the 
United States, are the privileges and immunities of citizens of the 
United States, that they are secured by the Constitution, that Con- 
gress has the power to protect them by appropriate legislation." 
See Lien, Privileges and Immunities of Citizens of the United States, 
p. 69. The Supreme Court in Patterson v. Colorado, above, refused 
to decide whether the liberty of the press declared in the First 
Amendment, is included by the word " liberty " in the Fourteenth 
Amendment. These questions, however, are outside the purview of 
the present discussion. 

^'^ Patterson, Liberty of the Press, Speech and Public Worship, 
p. 61 ff . ; 2 Willoughby on the Constitution, 844 ; and Townshend, 
Slander and Libel, 2d ed., sec. 252. 



LIMITATIONS ON THE POSTAL POWER IO3 

conclusion that "they obliterated the English common-law 
test of supposed bad tendency to determine the seditious or 
blasphemous character of a publication, and hence obliterated 
the English common-law crimes of sedition and blasphemy ; 
shifted the law of obscene and immoral publications from 
the region of libel to the region of public nuisance ; and left 
standing only the law of defamatory publications, materially 
modifying that." Professor Schofield goes on to say that 
"the declarations wiped out the English common-law rule 
in criminal prosecutions of defamatory libel, * The greater 
the truth the greater the libel,'" and "threw on American 
judges in civil and criminal actions for defamatory libel the 
new work of determining what is truth in a publication on 
a matter of public concern." The correct view, in this 
author's opinion, is that "if liberty of the press in the First 
Amendment means anything it legalizes published truth on 
all matters of public concern. "^^ Without, however, at- 
tempting to pass judgment on Professor Schofield's criticism 
of the cases, it will be possible, from either view, to ascer- 
tain whether the freedom of the press has ever been abridged 
by the denial of the use of the mails (for freedom of pub- 
lication includes, although perhaps not absolutely, freedom of 
circulation), and to set the limits of congressional action. 

Not until 1836 was there any serious discussion of the 
meaning of the phrase " liberty of the press " and the limita- 
tions it might impose upon the postal regulations which 
Congress had the power to make.^^ But during this year 
an exhaustive debate took place in the Senate as a result of 
President Jackson's message (December 2, 1835) urging 
the enactment of legislation to check the incendiary publica- 
tions with which the Northern abolitionists were flooding 



^^ Schofield, Freedom of the Press in the United States, pp. 78, 
79 and no. 

19 The freedom of the press had, of course, figured in the dis- 
cussion of the so-called Sedition Act passed by Congress on July 
14 1798. It was a factor also in the consideration by the Senate 
(December, 1901) of legislation "to prevent the teaching and pro- 
mulgation of anarchical doctrines in the United States." See my 
paper, " Federal Interference with the Freedom of the Press," 23 
Yale Law Journal, 559 and authorities there cited. 



I04 THE POSTAL POWER OF CONGRESS 

the slave states. The evil complained of was serious, and 
the states were making strenuous objections to the continued 
presence in the mails of such literature. 

On July 29, 1835, for example, the Southern Patriot of 
Charleston, S. C, complained that the mails from the North 
were "Literally overburthened with the newspaper called 
* The Emancipator ' and two tracts entitled ' The Anti- 
Slavery Record ' and * The Slaves' Friend/ " This was de- 
clared a ''monstrous abuse of the public mail" and the 
publications were denounced as moral poison, the Patriot 
adding : "If the general post office is not at liberty [to 
prevent circulation], it is impossible to answer for the 
security of the mail in this portion of the country, which 
contains such poisonous and inflammatory matter."^^ The 
Charleston postoffice was in fact entered, and this particular 
consignment of papers destroyed. " Extreme cases require 
extreme remedies," said the Patriot, and the Charleston 
Mercury went so far as to predict that anyone violating the 
South Carolina law against circulation " would assuredly 
expiate his offence on the gallows. "^^ Practically all of the 
Southern States had extremely stringent statutes and several 
provided capital punishment for offenders.^^ 

This occurrence at Charleston led Samuel L. Gouverneur, 
postmaster at New York, to suggest to Amos Kendall, the 
postmaster general, that the transmission of such papers be 
suspended, but Arthur Tappan, president of the American 
Anti-slavery Society, declined to surrender " any rights or 
privileges which we possess in common with our fellow 
citizens in regard to the use of the United States mail."^^ 

20 Niles' Register, vol. xlviii, p. 402. 

21 Ibid., p. 403. 

22 See Hurd, Law of Freedom and Bondage, vol. ii, 9, 10, 86, 97,, 
99, 147, 161, 170, 173. The Virginia law specifically included post- 
masters within its provisions. One indictment under the Alabama 
law was based upon the following objectionable language: "God 
commands, and all nature cries out, that man should not be held as 
property. The system of making men property has plunged 2,250,000 
of our fellow countrymen into the deepest physical and moral degra- 
dation, and they are every moment sinking deeper." Niles' Regis- 
ter, vol. xlix, p. 358. 

23 Niles' Register, vol. xlviii, p. 447. 



LIMITATIONS ON THE POSTAL POWER IO5 

Local postmasters nevertheless began to take matters in 
their own hands. In regard to the detention of incendiary 
matter by the Charleston postoffice, Kendall wrote : 

" I am satisfied that the postmaster general has no legal 
authority to exclude newspapers from the mail, nor prohibit 
their carriage or delivery on account of their character or 
tendency, real or supposed. . . . 

" The post office department was created to serve the people 
of each and all of the United States and not to be used as 
the instrument of their destruction. . . . Entertaining these 
views, I cannot sanction and will not condemn the step you 
have taken. Your justification must be looked for in the 
character of the papers detained, and the circumstances by 
which you are surrounded."^^ Kendall left it to the dis- 
cretion of the local postmasters as to whether they would 
carry out their official duties, or obey the laws of the local 
jurisdictions.^'' 

It was, therefore, no surprise when Jackson adverted to 
the situation, and in his annual message asked for legisla- 
tion denying such publications the facilities of the postoffice. 
President Jackson wrote: 

" I must also invite your attention to the painful excite- 
ment produced in the south, by the attempts to circulate, 
through the mails, inflammatory appeals addressed to the 
passions of the slaves, in prints, and in various sorts of 
publications, calculated to stimulate them to insurrection 
and to produce all the horrors of a servile war. . . . 

" In leaving the care of other branches of this interesting 
subject to the state authorities, to whom they properly be- 
long, it is nevertheless proper for Congress to take such 
measures as will prevent the post office department, which 
was designed to foster an amicable intercourse and cor- 
respondence between all members of the confederacy, from 
being used as an instrument of the opposite character. The 
general government to which the great trust is confided of 

2* Niles' Register, vol. xlviii, p. 448. 

25 The legal aspects of this solution of the problem will be treated 
in the chapter following. 



I06 THE POSTAL POWER OF CONGRESS 

preserving inviolate the relations created among the states 
by the Constitution is especially bound to avoid, in its own 
action, anything that may disturb them. I would, therefore, 
call the special attention of Congress to the subject, and 
respectfully suggest the propriety of passing such a law as 
will prohibit, under severe penalties, the circulation in the 
southern states, through the mail, of incendiary publications 
intended to instigate the slaves to insurrection."^® 

On December 21, 1835, Calhoun moved that "so much 
of the President's message as relates to the transmission of 
incendiary publications by the United States mail be re- 
ferred to a special committee." King of Alabama ex- 
pressed the opinion of several that the regular standing com- 
mittee on postoffices would do, since he " felt a confident 
belief that there was no disposition in any of its members 
to have the public mails prostituted to a set of fanatics." 
Preston of South Carolina thought that a solution of the evil 
could be arrived at by a method other than barring the pub- 
lications from the mail. He proposed " that the depositing 
of an incendiary publication in the post office should be con- 
stituted an offence in the state where it took place, and the 
letting of it out of the post office should be equally deemed 
an offence where it occurred."^^ Nevertheless, Calhoun's 
view prevailed and the message was referred to a select 
committee of which he was made chairman.^^ An elaborate 
report written by him was presented to the Senate on Feb- 
ruary 4, 1836,^^ but with the unqualified concurrence of 
only one fellow committeeman. The others opposed, either 
any federal action at all, Calhoun's theory as to the remedy, 



26 Statesman's Manual, vol. ii, p. 911. 

27 12 Debates of Congress, 26, 33. 

28 Calhoun had for some time been interested in the problem, his 
attitude being indicated in September, when he wrote to the editor 
of the Washington Telegraph: "The indications are that the south 
will be unanimous in their resistance and that their resistance will 
be of the most determined character, even to the extent of disunion ; 
if that should be necessary to arrest the evil. I trust, however, it 
may be arrested far short of such extremity." Niles' Register, vol. 
xlix, 49. 

29 12 Debates of Congress, 383 ; Calhoun's Works, vol. v, p. 191. 



LIMITATIONS ON THE POSTAL POWER lO/ 

or some of the details of the measure which was recom- 
mended. 

The committee's report was based upon the premise that 
Congress had not the power to pass legislation in accordance 
with the President's recommendation to exclude the ob- 
jectionable publications from the mails ; such a law, Calhoun 
thought, " would be a violation of one of the most sacred 
provisions of the Constitution, and subversive of reserved 
powers essential to the preservation of the domestic in- 
stitutions of the slaveholding states, and with them, of their 
peace and security." This would be closely analogous to the 
Sedition Act which made it a crime to print " any false, 
scandalous and malicious writing or writings, against the 
government of the United States," or Congress, or the 
President, " with intent to defame ... or to bring them 
. . . into contempt or disrepute ... or to incite against 
them, or either of them, the hatred of the good people of 
the United States."^« 

But, said Calhoun, postulating the unconstitutionality of 
these provisions, "as abridging the freedom of the press, 
which no one now doubts^ it will not be difficult to show 
that if, instead of inflicting punishment for publishing, the 
act had inflicted punishment for circulating through the 
mails for the same offence, it would have been equally un- 
constitutional . . . To prohibit circulation, is in effect, to 
prevent publication . . . each is equally an abridgment of 
the freedom of the press. 

" The prohibition of any publication on the ground of its 
being immoral, irreligious, or intended to excite rebellion 
or insurrection, would have been equally unconstitutional; 
and, from parity of reason, the suppression of their circula- 
tion through the mail would be no less so."^^ 

The fallacy of this is evident. So far as the Sedition Act 
is concerned, there are two grounds upon which it could be 
attacked : lack of congressional power to punish sedition, 
and abridgment of the freedom of the press. The first 

30 I Stat. L. 596. 
21 Italics are mine. 



I08 THE POSTAL POWER OF CONGRESS 

question, for present purposes, needs no discussion ;^2 but, 
as for the second, it is well settled that punishment for sedi- 
tious, obscene, defamatory and blasphemous publications, is 
not in violation of the freedom of the press.^^ In the 
United States, then, there is no constitutional restriction 
which will compel the government impotently to remain the 
subject of attacks upon its stability. The Act of 1798 was 
very broad and objectionable on this ground, but the pro- 
hibition of seditious utterances urging the use of force or 
unlawful means to overthrow the government or falsely 
defamatory of federal officers would not infringe any provi- 
sion of the bill of rights.^* 

32 The subject has been given very adequate treatment by Mr. 
Henry Wolfe Bilke in his paper on " The Jurisdiction of the United 
States over Seditious Libel," 50 American Law Register, i. Mr. 
Bilke says : " The power to punish, for seditious libel, it is sub- 
mitted, results to the United States, first from its inherent right to 
adopt such measures as are necessary for its self-preservation, and 
second, from its right to adopt such measures as are necessary to 
secure its officers in the due administration of their duties." While 
it is the better view that Congress has no powers inherent in sover- 
eignty (see I Willoughby on the Constitution, 66), the Supreme 
Court apparently rested its decisions in the Chinese Exclusion 
Cases [sub. nom. Chae Chan Ping v. U. S., 130 U. S. 581 (1888), 
and especially Fong Yue Ting v. U. S., 149 U. S. 698 (1892)] on 
a contrary theory. These cases furnish the authority for the first 
conclusion just quoted, while the case of In Re Neagle, 135 U. S. 

1 (1889), is made the basis for the second reason why it is within 
the power of the United States to punish sedition. At the time of 
the passage of the act, it had not yet been decided that the federal 
courts possessed no common law criminal jurisdiction. U. S. v. 
Hudson & Goodwin, 7 Cranch 32 (1812). The FederaHsts main- 
tained that such jurisdiction did exist, and that since sedition was a 
common law offence, Congress could make it statutory and thus aid 
the courts in its punishment. 

33 Patterson, Liberty of the Press, etc., p. 61. Professor Schofield 
is of the opinion (Freedom of the Press in the United States, p. 87) 
that " Liberty of the Press as declared in the First Amendment and 
the English common-law crime of sedition cannot co-exist " ; but 
certain it is, that without impairing the freedom of the press, Con- 
gress may punish seditious utterances counseling the use of force 
or unlawful means, and falsely defaming public officials. 

34 The weight of authority upholds this view. See Bilke, op. cit.; 

2 Willoughby on the Constitution, 845; Von Hoist (Constitutional 
History, vol, i, 142) considers the law "unquestionably unconsti- 
tutional" and this opinion is supported by 2 Tucker on the Consti- 
tution, 669. Story (Commentaries, vol. iii, 744) declines to commit 
himself, but intimates that the law was valid. The chief objection, 
as I have said, was to the very broad terms of the act. 



LIMITATIONS ON THE POSTAL POWER IO9 

But legislation of the character urged by Jackson was not on 
all fours with the Sedition Act, for by that act the govern- 
ment was punishing publications which it deemed inimical 
to its own safety. The incendiary matter, however, con- 
cerned the states and only a portion of them ; the power of 
Congress to prohibit it, therefore, was doubtful, unless the 
evil reached such proportions that the menace to the states 
was a menace to the federal government. To Calhoun it 
seemed also that the prohibition of circulation through the 
mails was tantamount to a prohibition of publication. 

The right *' to determine what papers are incendiary," the 
report argued, and as such to "prohibit their circulation 
through the mail, necessarily involves the right to determine 
what are not incendiary and to enforce their circulation " ; 
both were matters of state prerogative. And, if "con- 
sequently the right to protect her internal peace and security 
belongs to a state, the general government is bound to re- 
spect the measures adopted by her for that purpose, and to 
cooperate in their execution, as far as its delegated powers 
may admit, or the measure may require. Thus, in the 
present case, the slaveholding states having the unquestion- 
able right to pass all such laws as may be necessary to 
maintain the existing relation between master and slave in 
those states, their right, of course, to prohibit the circulation 
of any publication or intercourse calculated to disturb or 
destroy that relation is incontrovertible." The general gov- 
ernment is bound, " in conformity to the principle estab- 
lished, to respect the laws of the state in their exercise, and 
so to modify its act as not only not to violate those of the 
states, but as far as practicable, to cooperate in their 
execution." 

Simultaneously with the presentation of this report, 
Calhoun introduced a bill, framed in accordance with his 
views, making it unlawful for any postmaster to receive and 
put in the mail any publication addressed to a jurisdiction 
where its circulation was forbidden. It was made a crime 
to deliver such prohibited mail to any person not "duly 



no THE POSTAL POWER OF CONGRESS 

authorized ... to receive the same " by the local authori- 
ties, and there was a further provision that the laws of the 
United States should not be allowed to protect any post- 
master accused of violating local regulations. By this 
means, Calhoun thought to preserve the liberty of the press 
and hand the matter over to the states for their settlement.^^ 

The constitutional questions involved in the report and 
law proposed gave rise to a debate of such importance that 
it has several times been referred to by the Supreme Court 
of the United States in passing on partially analogous 
matters.^^ Many different views were advanced as to the 
correct interpretation of the postal grant which at this time 
had received practically no consideration by the judiciary. 
Webster, for example, contended that the proposed law 
"conflicted with that provision of the Constitution which 
prohibited Congress from passing any law to abridge the 
freedom of speech or of the press. What was the liberty 
of the press ? " he asked. " It was the liberty of printing as 
well as the liberty of publishing, in all the ordinary modes 
of publication ; and was not the circulation of papers through 
the mails an ordinary m.ode of publication? . . . Congress 
might, under this example, be called upon to pass laws to 
suppress the circulation of political, religious, or any other 
description of publications which produced excitement in 
the states." Finally, he argued, " Congress had not the 
power, drawn from the character of the paper, to decide 
whether It should be carried in the mail or not; for such 
decision would be a direct abridgment of the freedom of the 
press. "^^ 

Clay argued to the same effect, considering the bill un- 
called for by public sentiment, unconstitutional, and contain- 
ing "a principle of a most dangerous and alarming char- 
acter."^^ Buchanan's views, however, were different. " It 

35 12 Debates of Congress, 383. Postmasters were further enjoined 
" to cooperate, as far as may be, to prevent the circulation of any 
pamphlet" where it was forbidden by local laws. 

36 Ex parte Jackson and Lewis Publishing Co. v. Morgan. 
37 12 Debates of Congress, 1721. 

38 Ibid., 1728. 



LIMITATIONS ON THE POSTAL POWER III 

was one thing [he said] not to restrain or punish publica- 
tions ; it was another and an entirely different thing to carry 
and circulate them after they have been published. The one 
is merely passive, the other is active. It was one thing to 
leave our citizens entirely free to print and publish and 
circulate as they pleased; and it was another thing to call 
upon us to aid in their circulation. From the prohibition 
to make any law * abridging the freedom of speech or of 
the press/ it could never be inferred that we must provide 
by law for the circulation through the post office of every- 
thing which the press might publish. "^^ 

Senator Davis of Massachusetts charged, quite properly, 
it seems to me, that the report and bill were in conflict, since 
" the report sets forth that Congress has no power to make a 
law to restrain the circulation of incendiary papers through 
the mail, because the post masters have no right to determine 
what is and what is not incendiary ; and because to shut 
papers out of the mail, would be an invasion of the liberty 
of the press." But the bill would have the United States 
adopt and enforce state laws prohibiting the circulation of 
incendiary papers, " having constitutional power so to do 
and being bound in duty so to do."*° Another difficulty, as 
Davis went on to say, was " that incendiary matter is any- 
thing unfavorable to slavery. The general principle urged 
by the Senator from Carolina is, that where the states have 
power to legislate, the United States is bound to carry into 
execution their laws. They have the power to prohibit the 
circulation of incendiary matter, and therefore Congress 
ought to aid that power." 

But to this "there are insurmountable difficulties. How 
and by whom, is this law to be executed? Who is to de- 

39 12 Debates of Congress, 1724. 

*° Ibid., 1 149. As a matter of fact practically all of the state con- 
stitutions contained provisions guaranteeing the freedom of the 
press. There was, however, liability for abuse in Maine, Con- 
necticut, New York, Pennsylvania, Delaware, Kentucky, Tennessee, 
Indiana, Illinois, Ohio, Mississippi, Alabama and Missouri. The 
other constitutions gave unrestricted freedom, subject, of course, to 
the common law exceptions. See Niles' Register, vol. xlix, 236. 



112 THE POSTAL POWER OF CONGRESS 

termine, and in what manner, whether the Constitution of 
Massachusetts, which declares that all men are born free 
and equal, or the Declaration of Independence . . . touch 
the subject of slavery or are incendiary? Whoever holds 
this power may shut up the great channels of inter-com- 
munication ; may obstruct the great avenues through which 
intelligence is disseminated."*^ 

The use of the mail was declared by Mr. Morris of Ohio 
to be " a reserved right, with which no law ought to inter- 
fere, and not a governmental machine which Congress can 
withdraw at pleasure or render nugatory by the acts of its 
officers." Mr. King raised the question as to federal en- 
forcement of circulation in the states against their will. It 
would depend, he said, on the character of the paper. " If 
it were a commercial letter ... or any other paper con- 
nected with the granted powers and social relations, as 
established by the Constitution, and not inconsistent with 
the reserved rights of the states, in that case its circulation 
might be enforced. If of a different character it could not 
be enforced, and the states whose acknowledged rights might 
be affected, could interfere and arrest the circulation."*^ 

This debate, although exhaustive, was inconclusive, and 
some of the opinions expressed seem, in the light of present 
day construction of the postal clause, almost absurd. Con- 
siderably changed, Calhoun's bill came up for a vote on June 
8, 1836, and failed of passage. In its amended form, the 
bill no longer required that postmasters know the laws of the 
places to which the mail they received was directed. Under 
a penalty of being removed from office, they were forbidden 
to deliver publications, the circulation of which was pro- 
hibited by local laws, and in the event that state regulations 
were not regarded, it was provided that " nothing in the acts 

*i 12 Debates of Congress, 1103. 

42 Ibid., 1 124. The House Committee on Postoffices and Post- 
roads had the President's message under consideration and " came 
to the conclusion by a vote of 6 to 3, in favor of the constitutionality 
and expediency of legislation, to restrain the mail circulation of 
these publications." The majority, however, was unable to agree 
upon a bill. Ibid., 2944. 



LIMITATIONS ON THE POSTAL POWER II 3 

of Congress shall be construed " so as to furnish immunity 
from prosecution.*^ 

There is much to be said in favor of this bill as amended. 
To make their postal agents amenable to local laws as re- 
gards the distribution of certain matter is surely within the 
constitutional power of Congress, and the aim should con- 
stantly be for the federal government to legislate so that 
national and local statutes will be harmonized. " It must be 
kept in mind," the Supreme Court has said, "that we are 
one people and that the powers reserved to the states and 
those conferred on the nation, are adapted to be exercised, 
whether independently or concurrently, to promote the gen- 
eral welfare, material and moral."** In several instances 
this dictum of the Court has been effectuated. 

The Judiciary Act of 1789*^ adopted "the laws of the 
several states " as " rules of decision in trials at common law 
in courts of the United States in cases where they apply. "*^ 
Quarantine and pilotage regulations have been freely made 
by the states.*^ During Mr. Jefferson's administration (and 
this was a precedent relied upon by Calhoun), Congress 
passed a law forbidding the transportation of free negroes 
from one state into any other where by local laws they were 
not permitted to reside.*^ The constitutionality of this act 
was sustained by Chief Justice Marshall.*^ So also, the 
congressional act providing for publicity of campaign ex- 
penditures forbids any candidate for Representative in Con- 

*3 12 Debates of Congress, 1721. The analogy is noticeable between 
Calhoun's bill and the Webb-Kenyon Act. The purpose of each was 
substantially the same, — to make state laws more effective. The 
latter simply excludes from interstate commerce intoxicating liquor 
intended to be used in violation of the law of destination, providing 
no penalties, and merely taking from the offender, when the state 
attempts to punish, his hitherto valid defense that the local author- 
ity was interfering with Interstate commerce. See my papers, i 
California Law Review, 499 and 28 Harvard Law Review, 225, 

4* Hoke V. U. S., 227 U. S. 308 (1913). 

*5 1 Stat. L. 73. 

*6 Golden v. Prince, 10 Fed. Cas. 542 (1814). 

*7 Cooley V. Port Wardens, 12 How. 299 (1851). 

48 Act of Feb. 28, 1803 ; 2 Stat. L. 295. 

*9 Brig Wilson, 1 Brockenbo rough, 423 (1820). 



I 14 THE POSTAL POWER OF CONGRESS 

gress or for Senator of the United States to " use money in 
violation of the laws of the state in which he resides,"^*' and 
Congress has adopted and enforced, as its own, state laws 
governing elections to the House.^^ Finally, in spite of the 
constitutional requirement that bankruptcy laws must be 
uniform. Congress has permitted great variance among the 
several states, their regulations being enforced by the federal 
courts. To this there is no constitutional objection.^^ 

There is, thus, a considerable body of analogous authority 
in support of Calhoun's bill as amended. In its first form, 
the law he proposed was open to objection in that it required 
deputy postmasters to know the regulations of jurisdictions 
other than their own, and its effect was to exclude from the 
mails incendiary matter which the receiving postmaster 
thought would be considered objectionable at its destina- 
tion. Under the amended act, however, there would be 
uniformity, since everything would be transmitted, the re- 
striction being only as to circulation within the states. In 
administering a great governmental establishment, it should 
be the aim of Congress not to interfere with the exercise by 
the states of powers reserved to them. 

But Calhoun's argument that the denial of postal facili- 
ties was tantamount to a denial of the right of publication, 
is not well founded, as the Supreme Court of the United 
States has been at pains to point out ; nevertheless it is true 
that, in some measure at least, the First Amendment insures 
a use of the postoffice.^^ Whether, if Congress had passed 
legislation excluding the incendiary literature from the mails, 
absolutely, the constitutional guarantee of a free press would 
have been violated, depends upon the character of the pub- 
lications. If they were of such a seditious tendency that 
their menace of established institutions in the states was a 
menace to the federal government, if they fomented dis- 

50 Act of August 19, 1911; zi Stat L. 25. 

51 Ex parte Siebold, 100 U. S. 371 (1879). 

52 Hanover Bank v. Moyses, 186 U. S. 181 (1902). 

53 Ex parte Jackson, 96 U. S. 727 (1878) ; see the quotation from 
this case, below, pp. 115-116. 



LIMITATIONS ON THE POSTAL POWER II5 

order and proposed to abolish slavery otherwise than by 
law, their utterance could have been prohibited, and the 
denial of postal facilities would have been constitutional. 
Or, if the objectionable publications did not affect the gen- 
eral government, but incited to arson, murder, etc., and were 
not simply political appeals, they could have been excluded, 
and there would have been no infringement of the freedom 
of the press. But the power of Congress did not extend to 
the denunciation of anything unfavorable to slavery; free- 
dom of circulation could not be denied publications unless 
they fell within the limits stated above. 

The views expressed in this debate on Calhoun's bill were 
urged before the Supreme Court of the United States with 
considerable force when it was called upon to determine the 
constitutionality of the act excluding lottery tickets from the 
mails. The prevailing opinion in the senatorial debate had 
been, as we have seen, that Congress did not possess the 
power to prohibit the carriage in the mails of the incendiary 
publications, and to this citation of authority the Supreme 
Court replied : 

" Great reliance is placed by the petitioner upon these 
views, coming as they did in many instances, from men 
alike distinguished as jurists and statesmen. But it is evi- 
dent that they were founded upon the assumption that it is 
competent for Congress to prohibit the transportation of 
newspapers and pamphlets over postal routes in any other 
way than by mail; and of course, it would follow, that if 
with such a prohibition, the transportation in the mail could 
also be forbidden, the circulation of the documents would 
be destroyed and a fatal blow given to the freedom of the 
press. But we do not think that Congress possesses the 
power to prevent the transportation in other ways, as mer- 
chandise, of matter which it excludes from the mails. To 
give efficiency to its regulations and prevent rival postal 
systems, it may, perhaps, prohibit the carriage by others for 
hire, over postal routes, of articles which legitimately con- 
stitute mail matter, in the sense in which those terms were 



Il6 THE POSTAL POWER OF CONGRESS 

used when the Constitution was adopted, — consisting of 
letters, and of newspapers and pamphlets, when not sent 
as merchandise, — ^but further than this its power of prohibi- 
tion cannot extend." 

And in making a bare denial of the charge that the law 
abridged the liberty of the press, the Court went on to say : 

" In excluding various articles from the mail, the object 
of Congress has not been to interfere with the freedom of 
the press, or with any other rights of the people, but to 
refuse its facilities for the distribution of matter deemed 
injurious to the public morals. . . . 

** Nor can any regulations be enforced against the trans- 
portation of printed matter in the mail, which is open to 
examination, so as to interfere in any manner with the 
freedom of the press. Liberty of circulating is as essential 
to that freedom as liberty of publishing ; indeed, without the 
circulation, the publication would be of little value. If, 
therefore, printed matter be excluded from the mails, its 
transportation in any other way cannot be forbidden by 
Congress."^^ 

In 1890 Congress extended the inhibition to " any news- 
paper, circular, pamphlet, or publication of any kind, con* 
taining any advertisement of any lottery," and again the 
Supreme Court held that there had been no impairment of 
the freedom of the press. The Court said : 

"We cannot regard the right to operate a lottery as a 
fundamental right infringed by the legislation in question; 
nor are we able to see that Congress can be held, in its enact- 
ment, to have abridged the freedom of the press. The 
circulation of newspapers is not prohibited, but the govern- 
ment declines itself to become an agent in the circulation of 
printed matter which it regards as injurious to the people. 
The freedom of communication is not abridged within the 
intent and meaning of the constitutional provision unless 
Congress is absolutely destitute of any discretion as to what 
shall, or shall not be carried in the mails, and compelled 

^* Ex parte Jackson, 96 U. S. yzZ (1878) ; italics are mine. 



LIMITATIONS ON THE POSTAL POWER I I / 

arbitrarily to assist in the dissemination of matter con- 
demned by its judgment, through the governmental agencies 
which it controls. That power may be abused furnishes 
no ground for a denial of its existence, if government is to 
be maintained at all."^^ 

It should be remarked that in these cases the reasoning 
was largely based on the assumption that prohibiting cir- 
culation through the mails was not equivalent to prohibiting 
publication, and Congress could thus deny postal facilities 
to matter which it deemed injurious to the people, without 
interfering with the liberty of the press, since transportation 
between the states, outside of the mails, would still be pos- 
sible. But it would seem that this doctrine was repudiated, 
inferentially at least, when the Supreme Court upheld the 
law excluding lottery tickets from interstate commerce,^® 
and it would, therefore, it seems to me, have been far better 
if the Court, in the first instance, had adopted other reason- 
ing. It could have held that the liberty of the press suffered 
abridgment by a denial of postal facilities, but that lottery 
advertisements, by common opinion, had become as ob- 
jectionable as immoral writings, and that the latter class, — 
an exception to the common law guarantee, — could, by 
reason of a developing moral sense, be made to include the 
former. Or the Court could have announced as a rule what 
is probably true, independent of judicial acceptance, that 
the freedom of the press does not include freedom of ad- 
vertisement. Or, to advert to the view of Professor Scho- 
field, if the First Amendment protects only publications 
which have an educational value on matters of national 
public concern, lottery advertisements do not come within 
this class ; nor do obscene writings.^'' Any one of these 
theories would have permitted the Supreme Court to render 

°5 In re Rapier, 143 U. S. no (1892) ; 26 Stat. L. 465. 

56 Champion v. Ames, 188 U. S. 321 (1902). See Goodnow, So- 
cial Reform and the Constitution, p. 83, and 2 Willoughby on the 
Constitution, 741. A fiatfooted declaration that the liberty of the 
press is subject to police regulations concerning what is to be carried 
in the mails, would, I think, have been justifiable. But the holding 
of the Jackson case is different. 

^"^ Schofield, Freedom of the Press in the United States, p. 82. 



Il8 THE POSTAL POWER OF CONGRESS 

a logical decision, without putting forth a dictum that Con- 
gress could not prevent the transportation in other ways of 
matter excluded from the mails, for this would be a check 
on circulation which would be a check on publication, and 
then being forced to take a contrary position in order to 
declare constitutional a statute which exercised the very 
power that the Court had doubted. Calhouil's contention, 
therefore, seems to be the more logical. As it was, the 
ratio decidendi of the Court in the Jackson and Rapier cases 
would have been impossible had the restraint been against 
writings of an admittedly innocuous character, against poli- 
tical opinions, for example, or against matters not so uni- 
versally condemned under the police power. And, to repeat, 
the Court was forced to deny what, I think, is undoubtedly 
the better doctrine, — that the liberty of the press may be 
abridged by restrictions on the use of the mails, — a doctrine 
that will probably be returned to if Congress legislates on 
publications that are unobjectionable. 

The question of anarchistic publications and the postoffice 
was raised in March, 1908, when President Roosevelt wrote 
to Attorney General Bonaparte: 

" By my direction the Postmaster General is to exclude La 
Questione Sociale, of Paterson, N. J., from the mails, and 
it will not be admitted to the mails, unless by order of the 
court, or unless you advise me that it must be admitted. "^^ 

In reply to the President's letter. Secretary Bonaparte 
wrote : 

" I am obliged to report that I can find no express provi- 
sion of law directing the exclusion of such matter from the 

58 60th Cong., 1st Sess., Senate Doc. No. 426. The paper in ques- 
tion was undoubtedly anarchistic in its tendencies and certain of its 
sentiments were seditious hbels. One editorial, for instance, con- 
tained the following : 

" Dynamite will help us to win. Two or three of us can deny a 
regiment of soldiers without fear. . . . Show no sympathy for any 
soldiers, even if they be sons of the people. As soon as we get 
hold of the police station, it is our victory. The thing is to kill the 
€ntire force. . . . We must get into the armory, and in case we can- 
not, then we will blow it down with dynamite. . . . We must set 
fire to three or four buildings in different locations . . . and then 
start a fire in the center of the city." 



LIMITATIONS ON THE POSTAL POWER II9 

mails, or rendering its deposit in the mails an offense against 
the United States " ; but " I have the honor to advise you 
that it is clearly and fully within the power of Congress to 
exclude from the mails publications " such as La Questione 
Sociale, " and to make the use, or attempted use, of the mails 
for the transmission of such writings a crime against the 
United States." 

What Congress thought of anarchy, Mr. Bonaparte said, 
was shown by the Act of March 7, 1907,^^ excluding and 
providing for the deportation of anarchists, and the At- 
torney General made this implied expression of legislative 
authority (even though in 1903 Congress had expressly re- 
fused to pass a law directed against anarchistic publica- 
tions) a sufficient basis to legalize the action of the Presi- 
dent and exclude newspapers which advocated the opinions 
quoted. The Attorney General's opinion concluded : 

" In the absence of any express provision of law or bind- 
ing adjudication on this precise point, ... I advise you 
that, in my opinion, the Postmaster General will be justified 
in excluding from the mails any issue of any periodical, 
otherwise entitled to the privileges of second class mail 
matter, which shall contain any article constituting a sedi- 
tious libel and counselling such crimes as murder, arson, riot, 
and treason." 

Such action, the opinion said, would be perfectly safe, 
since " it is well settled that at common law the owner of a 
libelous picture or placard or document of any kind is 
entitled to no damages for its destruction in so far at least 
as its value may depend on its unlawful significance." 
Hence the federal statutes which provide punishment for 
postmasters who may "unlawfully detain" or "improperly 
detain " mailable matter, would not operate.®^ 

5834 Stat. L. 908. 

60 Rev. Stat. Sees. 3890, 5471. But is this illustration on all fours 
with the question of illegally excluding La Questione Sociale? Mr. 
Bonaparte mentions the fact that while the article " constitutes a 
seditious libel and its publication, in my opinion, is undoubtedly a 
crime at common law," it is not an " offense against the United States 
in the absence of some federal statute making it one." U. S. v. 
Hudson & Goodwin, 7 Cranch 32 (1812). 



120 THE POSTAL POWER OF CONGRESS 

As a matter of fact, the newspaper was excluded for 
reasons other than its contents, but President Roosevelt 
transmitted the Attorney General's opinion to Congress and 
in a special message said : 

" Under this opinion I hold that the existing statutes give 
the President power to prohibit the Postmaster General 
from being used as an instrument in the commission of 
crime; that is, to prohibit the use of the mails for the 
advocacy of murder, arson, and treason; and I shall act 
upon such construction. Unquestionably, however, there 
should be further legislation by Congress in this matter. 
When compared with the suppression of anarchy, every 
other question sinks into insignificance." Congress has 
since acted by declaring that the term " indecent " in the 
section against obscene writings, should include " matter of 
a character tending to incite arson, murder or assassina- 
tion."«i 

The Attorney General in his opinion, it may be remarked, 
did not mention the freedom of the press, and this ques- 
tion was not involved. From what has already been said, it 
follows that there is no question as to the competency of 
Congress to pass legislation designed to deny the mails to 
anarchistic publications if they incite to crime. But the 
Attorney General's argument as to the power of the Presi- 
dent was not well founded; it granted to an administra- 
tive officer arbitrary discretion based on no explicit or 
implied legislative authority, and sanctioned the exercise of 
this power on the ground that the one injured could have 
no legal redress. It is, however, simply a question of 
whether the exclusion was ultra vires, not whether it was 
an abridgment of the freedom of the press.®^ 

61 Act of March 4, 191 1 ; 36 Stat. L. 1339. 

62 In U. S. ex rel. Turner v. Williams, 194 U. S. 279 (1904), the 
Supreme Court held that the provisions of the immigration act of 
1903 (32 Stat. L. 1213) for the exclusion and deportation of alien 
anarchists did not violate any constitutional limitations and that the 
freedom of the press was not involved. " If the word ' anarchists * 
should be interpreted as including aliens whose anarchistic views 
are professed as those of political philosophers innocent of evil 



LIMITATIONS ON THE POSTAL POWER 121 

The latest question of the freedom of the press was con- 
sidered by the Supreme Court in 191 3 when it sustained 
the so-called "newspaper publicity law." This required 
publications entered as second class matter (with a few 
exceptions) to furnish the postoffice department with, and 
publish semi-annually, a sworn statement of their editors 
and owners, in addition to marking as an advertisement any- 
thing for the publication of which, compensation is received. 
Newspapers were also required to give information as to 
their circulation figures. ^^ 

The law was vigorously assailed as being ultra vires, as 
denying due process of law, and as impairing the freedom 
of the press. It " establishes," said one of the counsel, " a 
governmental control over newspaper publishers and dictates 
to them what shall or shall not be published and the manner, 
form, and time of publishing. In other words, Congress in 
plain language provided that matter inherently proper and 
mailable shall be unmailable, not on account of any inherent 
defect, but solely because the publisher may refuse or neglect 
to advise the public of certain of his private matters as to 
which Congress seems to desire the public to be informed. 
This is not regulation, but paternalism, and a direct and 
positive abridgment of the freedom of the press."^* 

The Supreme Court, however, by a narrow line of reason- 
ing, sustained the statute, the opinion showing that in order 
to receive "entry" as second class matter and get the 
benefit of low rates, the publication must answer a number 
of questions concerning ownership, editorial supervision, 
circulation, sample copies, and advertising discrimination. 
The Court considered the new law as simply laying down 
additional conditions, compliance with which would enable 
the publishers to continue "to enjoy great privileges and 

intent, ... in the light of previous decisions, the act, even in this 
aspect, would not be unconstitutional, as applicable to any alien who 
is opposed to all organized government." 

6337 Stat L. 553. 

6* Lewis Publishing Company v. Morgan, 229 U. S. 288 (1913). 
Brief of Morris and Plante, p. 41. 



122 THE POSTAL POWER OF CONGRESS 

advantages at the public expense." The Court went on 
to say: 

'* This being true, the attack on the provision in question 
as a violation of the Constitution because infringing the 
freedom of the press and depriving of property without 
due process of law, rests only upon the illegality of the 
conditions which the provision exacts in return for the 
right to enjoy the privileges and advantages of the second 
class mail classification. The question, therefore, is only 
this: Are the conditions which were exacted incidental to 
the power exerted of conferring on the publishers of news- 
papers, periodicals, etc., the privileges of the second class 
classification, or are they so beyond the scope of the exer- 
cise of that power as to cause the conditions to be repugnant 
to the Constitution ? We may say this is the question, since 
necessarily if the power exists to legislate by discriminating 
in favor of the publishers, the right to exercise that power 
carries with it the authority to do those things which are 
incidental to the power itself, or which are plainly neces- 
sary to make effective the principal authority when 
exerted."^^ 

Whether this reasoning seems convincing or not, it must 
nevertheless be conceded that legislation to the same effect, 
not based upon the power of Congress over the mails, would 
be unconstitutional, and that in this case, Congress has 
been permitted to do by indirection what it has not the power 
directly to accomplish. The step is a short one to requiring, 
for a continuance of the low second class rates, that news- 
papers print, or refrain from printing, reading matter of a 
specified character. The decision, however, lends no sup- 
port to the belief that if this indirect regulation is carried 
further, or if there is a real interference with the freedom 
of the press, the Supreme Court will not intervene. 

Such are the incidents in which the liberty of the press 
has figured, and it is difficult to see how it has ever been 

65 Lewis Publishing Company v. Morgan, above. Another and 
more significant phase of this important case is treated in the last 
chapter of this study. 



LIMITATIONS ON THE POSTAL POWER 1 23 

abridged. The executive order of President Roosevelt ex- 
cluding La Questione Sociale from the mails was ultra vires, 
but, as Attorney General Bonaparte pointed out, the in- 
jured parties had slight chance of a remedy at law. Cer- 
tain it is that the paper in question was so seditious that 
under a state statute publication could have been stopped, 
and that an Act of Congress, forbidding such periodicals 
the privilege of the mails, would not have been in violation 
of the First Amendment. 

The decisions of the Supreme Court which have been 
quoted lead to no conclusion other than that any attempt 
on the part of Congress to place a previous restraint upon 
the press, or even to deny it postal facilities, for no discern- 
ible reason, would receive a judicial veto. The exclusion 
of lottery tickets, obscene matter, and other writings inimical 
to the public morals, has been clearly within the power of 
Congress, and legislation forbidding seditious and an- 
archistic publications when directed against the federal 
government, or banning them from the mails, would be 
constitutional. It is true that the "newspaper publicity 
law," strictly speaking, is a previous restraint, but the 
Supreme Court considered it as merely laying down addi- 
tional and reasonable conditions, compliance with which 
would enable periodical publications to continue to enjoy 
great and exclusive advantages of second class privileges, — a 
satisfactory, if not conclusive basis for the decision ; as 
interpreted by the Court, the act promotes, rather than 
abridges, the liberty of the press. 

Neither reason nor precedent justifies the view, eloquently 
urged by counsel in this case, that Congress by the law 
exercises "a governmental control over newspaper pub- 
lishers and dictates to them what shall not be published, and 
the manner, form, and time of publishing." On the con- 
trary, that great "palladium of liberty," — the freedom of 
the press, — seems to be in no danger of demolition through 
congressional action. 

Unreasonable Searches and Seizures. — As with the free- 



124 THE POSTAL POWER OF CONGRESS 

dom of the press, the Supreme Court of the United States 
has rarely been asked to restrain the postal power under the 
provision of the Fourth Amendment to the Constitution 
which declares that " the right of the people to be secure in 
their persons, houses, papers, and effects against unreason- 
able searches and seizures, shall not be violated, and no 
warrants shall issue, but upon probable cause, supported by 
oath or affirmation, and particularly describing the place to 
be searched, and the persons or things to be seized."^® The 
scope of this limitation, as applied to the mails, has been 
described by the Supreme Court in the following terms : 

"A distinction is to be made between different kinds of 
mail matter, between what is intended to be kept free from 
inspection, such as letters and sealed packages, subject to 
letter postage, and what is open to inspection. . . . Letters 
and sealed packages of this kind in the mail are to be as 
fully guarded from examination and inspection, except as 
to their outward form and weight, as if they were retained 
by the parties forwarding them in their own domiciles. The 
constitutional guaranty of the right of the people to be 
secure in their papers against unreasonable searches and 
seizures extends to their papers thus closed against in- 
spection, wherever they may be. Whilst in the mail, they 
can only be opened and examined under like warrant, issued 
upon similar oath or affirmation, particularly in describing 
the thing to be seized, as is required when papers are sub- 
jected to search in one's own household. No law of Con- 
gress can place in the hands of officials connected with the 
postal service any authority to invade the secrecy of letters 
and such sealed packages ; and all regulations adopted as to 
mail matter of this kind must be in subordination to the 

6^ For an historical consideration of this amendment, see Boyd v. 
U. S., ii6 U. S. 6i6 (1886). See also May, Constitutional History 
of England, vol. ii, p. 245 fif, ; Cooley's Blackstone, Book iv, p. 290 ff. ; 
Annals of ist Congress, vol. i, pp. 434, 754, and Story, Commen- 
taries, vol. iii, p. 748. Discussions of the general scope of the pro- 
vision are to be found in 2 Willoughby on the Constitution, 828; 
Cooley, Constitutional Limitations (7th ed.), p. 429, and Bruce, 
" Arbitrary Searches and Seizures as Applied to Modern Industry.'* 
Green Bag, vol. xviii, p. 273. 



LIMITATIONS ON THE POSTAL POWER 12$ 

great principle embodied in the Fourth Amendment of the 
Constitution."^^ 

The limitation operates chiefly upon administrative offi- 
cials who attempt to get evidence of violations of the law 
regarding obscene literature and fraudulent matter excluded 
from the mails. In regard to this the Court said : 

"Whilst regulations excluding matter from the mails 
cannot be enforced in a way which would require or permit 
an examination into letters, or sealed packages subject to 
letter postage, without warrant issued upon oath or affirma- 
tion, in the search for prohibited matter, they may be en- 
forced upon competent evidence of their violation obtained 
in other ways; as from parties receiving the letters and 
packages, or from agents depositing them in the postoffices, 
or others cognizant of the facts. And as to the objection- 
able printed matter which is open to examination, the regu- 
lations may be enforced in a similar way, by the imposi- 
tion of penalties for their violation through the courts, and, 
in some cases by the direct action of the officers of the postal 
service. In many instances those officers can act upon their 
own inspection, and, from the nature of the case, must act 
without other proof ; as where the postage is not prepaid, or 
where there is an excess of weight over the amount pre- 
scribed, or where the object is exposed, and shows unmis- 
takably that it is prohibited, as in the case of an obscene 
picture or print. In such cases, no difficulty arises, and no 
principle is violated in excluding the prohibited articles and 
refusing to forward them. The evidence respecting them is 
seen by everyone and is in its nature conclusive."^^ 

This view of the law has been acquiesced in by Congress 
which has provided that nothing in the acts excluding cer- 
tain matters from the mails, "shall be so construed as to 
authorize any person other than an employee of the Dead 
Letter Office, duly authorized thereto, to open any letter 
not addressed to himself."^^ The regulations promulgated 

6' Ex parte Jackson, 96 U. S. 727 (1878). 

®8 Ibid. But see Hoover v. McChesney, 81 Fed. Rep. 472 (1897). 

69 25 Stat. L. 873. 



126 THE POSTAL POWER OF CONGRESS 

for the postoffice department, provide, moreover, that neither 
postmasters, inspectors, employees, nor officers of the law, 
"without legal warrant therefor, have authority to open 
under any pretext a sealed letter while in the mails, not even 
though it may contain improper or criminal matter, or 
furnish evidence for the conviction of offenders," and out 
of excess of caution, it is further added that "the seal of 
letters or packages suspected to contain unmailable matter 
shall not be broken to ascertain that fact."^° The regu- 
lations provide that matter manifestly unmailable shall be 
withdrawn and sent to the Division of Dead Letters with a 
statement of the facts upon which such action was taken; 
if there is doubt as to the propriety of such disposition, the 
matter shall be sent to the Assistant Attorney General for 
the Postoffice Department, for his decision/^ Any unlaw- 
ful opening of the mail by a postal employee is dealt with 
criminally. '^^ Special regulations govern the examination 
by a customs officer of sealed packages supposed to be duti- 
able, in the presence of the addressee, but before delivery 
to him.*^^ 

If, then, at times, administrative zeal may lead to a dis- 
regard of these regulations, the official is criminally liable, 
and the one whose sealed mail is searched, has a right of 
action for damages. But the avowed purpose of Congress 
and of the postoffice department is to subordinate efficiency 
in the detection of wrongdoing to the right of the people, 
under the Fourth Amendment, to be secure in their sealed 
papers when they are in the hands of the government for 
transmission through the mails. "^^ 

7<) Postal Laws and Regulations of 1913, p. 300. 
71 Ibid., p. 313. 
7235 Stat L. 1 125. 

73 Postal Laws and Regulations of 1913, p. 372 ff. 
7* A third limitation on the postal power, namely, due process of 
law, is most properly treated in the concluding chapter of this essay. 



CHAPTER V 
The Power of the States to Interfere with the Mails 

In the disputed zone between federal authority and the 
reserved rights of the states, interesting and often acute 
problems have, of course, frequently developed. The most 
important of these have probably been with regard to the 
national control of interstate commerce and the police power 
of the states, and several times Congress has passed legisla- 
tion designed to leave certain subjects within the jurisdiction 
of the states or to make local regulations more effective. 
In Jefferson's administration, for example, Congress passed 
a law prohibiting the transportation of free negroes from 
one state into another where by local laws they were not 
permitted to reside;^ the sale of oleomargarine has been 
made subject to local regulations ;^ Congress has forbidden 
the transportation of game killed in violation of state laws,^ 
and has twice enacted legislation to enable the states more 
effectively to regulate the sale of intoxicating liquors.* 
Such action has been necessary since congressional silence 
has been interpreted by the courts as meaning that com- 
merce between the states shall be free, just as, when Con- 
gress has acted affirmatively, state laws in conflict are 
thereby suspended: in both cases the supremacy of the 
federal authority is unquestioned. Nevertheless local juris- 
dictions have been permitted to exercise a slight measure of 
police control.^ 

It would seem evident, at first glance, that, inherently, 

1 Act of February 28, 1803, 2 Stat. L. 295 ; Brig Wilson, 1 Brock- 
enborough 423 (1820). 

232 Stat L. 193; U. S. V. Green, 137 Fed. Rep. 179 (1905). 

3 Criminal Code, sec. 242; Rupert v. U. S., 181 Fed. Rep. 87 (1910). 

* Act of August 8, 1890, 26 Stat. L. 313 (Wilson Act) ; Act of 
March i, 1913, 37 Stat. L. 699 (Webb-Kenyon Act). 

s See 2 Willoughby, ch. xlii, and cases there cited. 

127 



128 THE POSTAL POWER OF CONGRESS 

the power of Congress over the postal system is even more 
paramount than that over interstate commerce, but there 
has been practically no judicial determination of the subject, 
and as there are only a few incidents in which a conflict 
of jurisdiction has taken place, conclusions as to the ex- 
clusiveness of the federal power must be largely speculative. 
Some aid, it is true, may be drawn from the analogy of 
interstate commerce, but there is the fundamental differ- 
ence that postal facilities are established and conducted, 
while trade between the states is simply regulated, by Con- 
gress. From this arises the presumption that the mails 
are less subject to interference than is interstate trade. Has 
this in fact proved to be the case?^ 

The first question as to the rights of the states was 
raised in 1812, when the general assembly of the Presby- 
terian Church and the Synod of Pittsburgh memorialized 
Congress to suspend the carrying and opening of the mails 
on Sunday, but, owing to the " peculiar crisis of the United 
States " then pending, the petitions were withdrawn and the 
House Committee on the Postoffice and Postroads did not 
consider the requests on their merits.'^ In practice the 
activities were lessened, offices at which the mail arrived 
on Sunday being kept open for one hour only, and that not 
during the time of public worship. So, the Senate Com- 
mittee to which similar memorials were referred, deemed 
it inexpedient to make any change, particularly "consider- 
ing the condition of the country, engaged in war, render- 
ing frequent communication through the whole extent of 
it absolutely necessary."^ 

The practice to which objection was made had obtained 
since the adoption of the Constitution. By the postal act 
passed in 1810^ it was made a duty of postmasters "at all 

^ There is also the question of state power over postroads, but 
this has been treated in Chapter III, above, p. 82 fiF. 

■^ Miscellaneous State Papers, vol. ii (American State Papers, 
vol. xxi), p. 194. 

8 American State Papers (Postoffice), vol. xv, p. 47. 

9 2 Stat. L. 592. 



POWER OF STATES TO INTERFERE WITH MAILS 1 29 

reasonable hours, on every day of the week, to deliver" 
mail to the proper persons, and since this provision was 
reenacted in 1825^*^ protests were still received from a num- 
ber of the states in which rigorous Sunday observance laws 
had been passed. Upon the memorials which were pre- 
sented in 1829 the Senate Committee acted unfavorably, but 
the House Committee acceded so far as to propose the 
discontinuance of delivery, but the maintenance of trans- 
portation;^^ the chief objection seemed to be to the keeping 
open of the postoffices and not to the carrying of the mails, 
for which, it was realized, the greatest possible expedition 
was desirable. In 1830 counter memorials opposed "the 
interference of Congress upon the ground that it would be 
legislating upon a religious subject and therefore uncon- 
stitutional,"^^ but this argument is clearly untenable, since 
Sunday legislation has uniformly been upheld, not upon 
religious grounds, but as a valid exercise of the police 
power,^^ and Congress certainly has analogous authority so 
far as concerns the conduct of government business. 

During the whole of this period, however, when certain 
localities and religious bodies desired observance of Sunday 
by the postoffice, the authority of Congress to make such 
regulations as it might see fit for the transportation of the 
mails, was not seriously questioned, and the states did not 
attempt, under their police power, themselves to take affirma- 
tive action. One of the committee reports suggested, but 
did not argue, a contrary proposition when it asked : " If 
the arm of the government be necessary to compel respect 
and obey the laws of God, do not the state governments 
possess infinitely more power in this respect?" But this 
implication of authority in the states to interfere with the 
postal function is later denied when the committee says that 

10 4 Stat. L. 102. 

^1 American State Papers (Postoffice), vol. xv, p. 211. For the 
lengthy memorials presented, see ibid., pp. 229-241. 
^2 Ibid., p. 231. 
1* Freund, Police Power, p. 168 ff. 

9 



130 THE POSTAL POWER OF CONGRESS 

in order to insure effective Sabbath observance it should be 
made a crime to receive, write, or read letters/* Congress, 
however, is the sole judge of the primary question. As a 
House Committee said in 1817: "The power 'to establish 
postoffices and postroads ' is by the Constitution of the 
United States exclusively tested in Congress ; and the trans- 
portation and distribution of the mail, at such times and 
under such circumstances as the public interest may require, 
are necessarily incident to that power."^^ 

It should be remembered, however, that the law provided 
for delivery "at all reasonable hours, on every day of the 
week," and so the question is different from that decided 
by the Supreme Court of the United States in Hennington 
v. Georgia,^^ where it was held that a state statute pro- 
hibiting the running of freight trains on Sunday was, in 
the absence of congressional regulation of the subject, not 
invalid as interfering with interstate commerce. But even 
if Congress had not provided for the carriage of the mails 
on Sunday, there could be no stoppage under a state statute, 
since the subject is one for exclusive federal regulation; 
and if the freight trains in the Georgia case had carried 
mails, the decision would have been otherwise. 

Similarly, the state laws which provide punishment for 
working on Sunday are inoperative as applied to postal 
employees (in discharge of their duty imposed by federal 
regulations) even though the local statute may make no 
express exception. The question has rarely come before 
the courts, but it has been held a work of necessity to shoe 



1* American State Papers (Postoffice), vol. xv, p. 230. See an 
interesting article on this subject in the North American Review, 
July, 1830. 

15 American State Papers (Postoffice), vol. xv, p. 358. 

16 163 U. S. 299 (1896). "... legislative enactments of the states 
passed under their admitted police power, and having a real relation 
to the domestic peace, order, health and safety of their people, but 
which, by their necessary operation, affect to some extent, or for a 
limited time, the conduct of commerce among the states, are yet not 
invalid by force alone of the grant of power to Congress to regulate 
such commerce, if not obnoxious to some other constitutional pro- 
vision or destructive of some right secured by fundamental law. . . ." 



POWER OF STATES TO INTERFERE WITH MAILS I3I 

horses used by a stage company in transporting the mail/^ 
The work done by postal employees would, therefore, be 
necessary within the exemption made by nearly all Sunday 
observance laws ; but if this were not the case, the laws 
would not apply. 

Closely allied to this question is that of how far the 
states may go in making police regulations, regard for which 
will result in a temporary delay of the mails. As early as 
181 7 it was held by a federal circuit court that a municipal 
corporation is competent to prevent the reckless driving of 
a mail carrier through crowded streets. ^^ Of similar im- 
port was the advice given the postoffice department in 1852 
by Attorney General Crittenden, that municipal ordinances 
prohibiting railroad trains from running at a rate of more 
than six miles an hour within the town limits, the mails 
thereby being delayed, were valid regulations and not in 
conflict with the act of Congress. 

"When such regulations," said the opinion, ''are fairly 
and discreetly made with intent to preserve the peace, safety 
and well being of the inhabitants of the city, they may be 
said to flow from powers necessary and proper in them- 
selves, which the act of Congress does not intend to take 
away or impugn."^^ 

1'^ Nelson v. State, 25 Texas App. 599 (1888). In some states ex- 
press exemptions are made for the transportation of the mail. Cf. 
State V. Norfolk & W. R. Co., 33 W. Va. 440 (1890). A typical 
Sunday observance statute is the following : " No person whatsoever 
shall work or do any bodily labor on the Lord's day, commonly 
called Sunday ; and no person having children or servants shall com- 
mand, or wittingly or willingly suffer any of them to do any manner 
of work or labor on the Lord's day (works of necessity and charity 
always excepted)" (Public General Laws of Maryland (ed. of 1904), 
art. xxvii, sec. 384). The general proposition that the state regula- 
tions do not apply to postal employees is supported by Commonwealth 
v. Knox, 6 Mass. 76 (1809), which held that it is not an indictable 
offence for a carrier of the mail to travel on Sunday. This exemp- 
tion was not applied to passengers, " nor may he [the carrier] blow 
his horn to the disturbance of serious people." An indictment did 
lie, however, against the chief justice of Massachusetts and his 
associates for travelling on Sunday (1793). See "Sunday Laws,'* 
in 2 American Law Review, 226. 

18 U. S. v. Hart, i Peters' C. C. 390 (1817). 

195 Opinions of the Attorneys General, 554 (1852). 



132 THE POSTAL POWER OF CONGRESS 

At later dates the validity of similar regulations requir- 
ing trains to stop at particular points was passed upon by 
the United States Supreme Court and the exercise of local 
authority was, in several cases, declared inoperative, pri- 
marily upon the ground that it interfered with the freedom 
of trade between the states, and the commercial, rather than 
the postal, power was relied upon, as in federal incorpora- 
tion, to furnish the basis of the court's decisions. But the 
fact that, in many instances, the trains carried the mails 
under contracts which required expedition was incidentally 
referred to as a further reason for declaring local regula- 
tions invalid. 

Thus, when an Illinois statute required an interstate train 
to turn aside from the direct route for a stop at a station 
three and one half miles away, the Supreme Court held 
the requirement to be "an unconstitutional hindrance and 
obstruction of interstate commerce and of the passage of the 
mails of the United States. . . . 

" It may well be, as held by the courts of Illinois, that the 
arrangements made by the company with the Postoffice De- 
partment of the United States cannot have the effect of 
abrogating a reasonable police regulation of the state. But 
a statute of the state, which unnecessarily interferes with the 
speedy and uninterrupted carriage of the mails of the United 
States, cannot be considered as a reasonable police regula- 
tion."^'' And in a later case the court said: 

" The fact that the company has contracts to transport 
the mails of the United States within a time which requires 
great speed for the trains carrying them, while not con- 
clusive, may still be considered upon the general question 
of stopping such trains at certain stations within the bound- 
aries of a state. The railroad has been recognized by 
Congress and is the recipient of large land grants, and the 
carrying of the mails is a most important function of such 

20 Illinois Central R. Co. v. Illinois, 163 U. S. 142 (1896). See 
also 143 111. 434; 19 L. R. A. 119 (1892). 



POWER OF STATES TO INTERFERE WITH MAILS 1 33 

a road."^^ The test as laid down by the United States 
Supreme Court is, therefore, simply one of reasonableness 
and necessity; and the courts, not the legislatures, are to 
determine the question. 

But there are many cases in which the problem is not so 
simple, and where the state regulations are so important 
that their violation should not be permitted under the cloak 
of federal sanction. Particularly is this true where the 
detention of a postal empolyee is, superficially, forbidden 
under the federal statutes, and there arises the dilemma 
that either the governmental agent is immune from inter- 
ference while in discharge of his duties and at all times 
for acts committed in the course of his employment, or 
that the national regulations must give way. 

For example, from the beginning of congressional activity 
under the postal power, there has constantly been a prohibi- 
tion, under severe penalties, of any obstruction of the mail. 
The federal district court for Maryland considered a case 
where stage horses upon which an innkeeper had a lien 
were stopped in the public highway while driving a coach 
containing the mail. The court held that since the United 
States could not be sued, "the defendant could not justify 
the stopping of the mail on principles of common law, as 
they apply to individuals and to the government." But, 
further, the defendant was not justifiable under the act of 
Congress which introduced no exception. " Whether the 
acts which it prohibits to be done were lawful or unlawful 
before the operation of that law, or independent of it, might 
or might not be justified, is not material. This law does 
not allow any justification of a wilful and voluntary act of 
obstruction to the passage of the mail. If, therefore, courts 
or juries were to introduce exceptions not found in the law 
itself, by admitting justifications for the breach of the act, 
which justifications the act does not allow to be made, it 
would be an assumption of legislative power."^^ 

21 Mississippi R. Commission v. Illinois C. R. Co., 203 U. S. 335 
(1906). See also Atlantic Coast Line R. Co. v. Wharton, 207 U. S. 
328 (1907). 

22 U. S. V. Barney, 3 Hughes' Reports (U. S. C C) 545 (1810). 



134 THE POSTAL POWER OF CONGRESS 

And when a warrant in a civil suit was served on a mail 
carrier and he was detained thereby, Chief Justice Taney 
(on circuit) held that the warrant was not justification to 
the traverser, a constable, yet the mere serving " would not 
render the party liable, to an indictment under this law. 
But if, by serving the warrant, he detained the carrier, he 
would then be liable."^^ Here also the immunity was simply 
as to civil proceedings. 

But when a carrier, while discharging his duty, was 
arrested upon an indictment for murder, and it was argued 
that this was an obstruction of the mail within the federal 
statute, the Supreme Court refused to listen to the plea, 
and held that the law, " by its terms applies only to persons 
who * knowingly and wilfully ' obstruct the passage of the 
mail or of its carrier ; that is, to those who know that 
the acts performed will have that effect and perform them 
with the intention that such shall be their operation. When 
the acts which create the obstruction are in themselves 
unlawful, the intention to obstruct will be imputed to their 
author, although the attainment of other ends may have 
been his primary object. The statute has no reference to 
acts lawful in themselves, from the execution of which a 
temporary delay to the mails unavoidably follows. All 
persons in the public service are exempt, as a matter of 
public policy, from arrest upon a civil process while thus 
engaged. Process of that kind can, therefore, furnish no 
justification for the arrest of a carrier of the mail. . . . 
The rule is different when the process is issued upon a 
charge of felony. No officer or employee of the United 
States is placed by his position, or the services he is called 
to perform, above responsibility to the legal tribunals of the 
country, and to the ordinary processes for his arrest and 
detention when accused of a felony, in the forms prescribed 
by the Constitution and laws. 

" The public inconvenience which may occasionally follow 
from the temporary delay in the transmission of the mail 

23 U. S. V. Harvey, 8 Law Reporter, 77 (U. S. C. C, 1845). 



POWER OF STATES TO INTERFERE WITH MAILS 1 35 

caused by the arrest of its carriers on such charges is far 
less than that which would arise from extending to them 
the immunity for which the counsel of the government con- 
tends. Indeed, it may be doubted whether it is competent 
for Congress to exempt the employees of the United States 
from arrest on criminal process from the state courts when 
the crimes charged against them are not merely mala pro- 
hibita but are mala in se. But whether such legislation 
of that character be constitutional or not, no intention to 
extend such exemption should be attributed to Congress 
unless clearly manifested by its language."-* 

Thus, the Supreme Court of Maine decided that a mail 
carrier, while in the performance of his duties, is liable to 
arrest for an offense against the law of the state, even 
though it be not a felony but a violation of a liquor regula- 
tion, and the public employment of the carrier will not 
justify him in assaulting the officer who serves the warrant. ^^ 
It was held, further, that preventing a horse from being 
taken from the stable for the purpose of carrying the mail 
was no offense under the federal law since the mail had to 
be in transitu. ^^ 

The attachment, ^cnowingly, of a coach carrying the mail 
is void, being an obstruction f' but levy on and sale of a 
ferryboat used to carry the mail do not constitute an ob- 
struction. ^^ In United States v. De Mott^^ it was held 
that the statute " is applicable to a person stopping a train 
carrying the United States mail, although he has obtained 
a judgment and writ of possession from a state court against 
the railroad company in respect to lands about to be crossed 
by such train." It is, moreover, not a sufficient plea to an 

2*U. S. V. Kirby, 7 Wall. 482 (1869) ; see also U. S. v. Clark, 23 
Int. Rev. Rec. 306 (U. S. D. C, 1877). 

25 Penny v. Walker, 64 Maine 430 (1874). 

26 U. S. V. McCracken, 3 Hughes' Reports (U. S. C. C) 544 
(1878). 

27 Harmon v. Moore, 59 Me. 428 (1871). 

28Lathrop v. Middleton, 23 Cal. 257 (1863). In this case, how- 
ever, the boat was at the time in an unfinished condition and had 
not been used on the ferry. 

293 Fed. Rep. 478 (1880). 



136 THE POSTAL POWER OF CONGRESS 

indictment for obstructing the mails, that the defendant was 
required by state law to collect tolls in advance from all 
drivers of wagons. " It is not the right of the company to 
the tolls under the state law which is doubted," said the 
Court, "but the right to stop the passage of the mails to 
enforce their collection which is denied."^° 

The rule may thus be stated to be as follows : In order to 
guard against obstruction of the mails, postoffice employees, 
while in discharge of their duty, have immunity from inter- 
ference on civil processes, but are liable for felonies, and 
perhaps, misdemeanors. But a different and more serious 
question upon which these cases throw little or no light, is 
presented when a postal agent in the discharge of a duty 
imposed by federal law (neglect of duty being punishable) 
thereby performs an act which has been made criminal by 
the state.^^ There are, naturally, but few cases when this 
conflict arises, but it is entirely possible, perhaps the most 
favorable opportunity being when a postmaster distributes 
certain mail matter, the possession or dissemination of which 
the state has declared unlawful. This conflict was once 
presented very acutely. 

In the senatorial debate on Calhoun's bill to deal with 
incendiary publications in the mails, the federal question 

30 United States v. Sears, 55 Fed. Rep. 268 (1893). In Turnpike 
Co. V. Newland, 15 N. C. 463 (1834), it was held that a mail coach 
was a " pleasure carriage " within the meaning of the local statute 
imposing tolls for the use of the road. The use of state facilities 
by persons employed in the federal civil service, said the court, 
" must be deemed intended to be on the terms prescribed to all 
persons, unless the law under which it is performed declared the 
contrary. We have found no act of Congress exempting persons 
or carriages engaged in the business of the postoffice from the pay- 
ment of tolls for passing ferries, bridges or roads." Payment was, 
therefore, required. 

31 The seriousness of this conflict was well expressed by Chief 
Justice Marshall in Cohens v. Virginia, 6 Wheaton 264 (1821). 
" To interfere with the penal laws of a state," he said, " where they 
are not levelled against the legitimate powers of the Union, but have 
for their sole object the internal government of the country, is a 
very serious measure which Congress cannot be disposed to adopt 
lightly or inconsiderately. The motives for it must be serious and 
weighty. It would then be taken deliberately and the intention 
would be clearly and unequivocally expressed." 



POWER OF STATES TO INTERFERE WITH MAILS 1 3/ 

of interference with the freedom of the press received the 
greatest attention^^ ^nd the equally important question of 
the validity of state legislation was only meagrely con- 
sidered. Nearly all of the Southern States had extremely 
stringent laws, making the publication, circulation and even 
the possession of objectionable literature punishable by 
severe penalties. Postal officials were not exempted; in 
Virginia they were specifically included.^^ Nevertheless, 
the objectionable dissem.ination continued, and Amos Ken- 
dall, postmaster general, who had left the problem largely 
in the hands of local officers,^^ was importuned from many 
sources to take decisive action. The citizens of Peters- 
burg, Va., on August 8, 1835, petitioned him to '* adopt such 
lawful regulations in his department as may be calculated 
to prevent" the dissemination of incendiary papers. More 
elaborate resolutions were adopted at Richmond, and at 
Charleston it was declared : 

"That the postoffice establishment cannot consistently 
with the Constitution of the United States and the objects 
of such an institution, be converted into an instrument for 
the dissemination of incendiary publications, and that it is 
the duty of the federal government to provide that it 
shall not be so prostituted, which can easily be effected by 
merely making it unlawful to transport by the pubHc mail, 
through the limits of any state, any seditious papers, for- 
bidden by the laws of such state, to be introduced or cir- 
culated therein, and by adopting the necessary regulations 
to effect the object." The resolutions then went on to 
assert "the right of each state to provide by law against 
the introduction of a moral pestilence, calculated to endanger 
its existence, and to give authority to their (sic) courts 
adequate to the suppression of the evil."^^ 

32 oee above, Chapter IV. 

33 Hurd, Law of Freedom and Bondage, vol. ii, pp. 9, 10. 

34 See above, p. 105. 

35 Niles' Register, vol. xlviii, p. 446. The Richmond resolutions 
were less elaborate, simply requesting the postmaster general "to 
use all powers vested in him by law " to prevent the dissemination 
and delivery of the objectionable matter. 



138 THE POSTAL POWER OF CONGRESS 

To the Petersburg resolutions, Kendall replied at some 
length, very conciliatingly, and pleaded that the discretion 
was not vested in him. " Having no official right to decide 
upon the character of papers passing through the mails," 
he said, " it is not within my power by any ' lawful regula- 
tion ' to obviate the evil of which the citizens of Peters- 
burg complain. If any necessity exists for a supervision 
over the productions of the press which are transmitted by 
mail, all will agree that it ought not to be vested in the head 
of the executive department. ... 

" For the present I perceive no means of relief except 
in the responsibilities voluntarily assumed by the post- 
masters through whose offices the seditious matter passes. "^^ 

In a letter to Gouverneur, the postmaster at New York, 
who had exercised his discretion in detaining certain pub- 
lications, Kendall expressed the same views but argued the 
constitutional problems at greater length. "As a measure 
of great public necessity," he said, " you and the other post- 
masters who have assumed the responsibility of stopping 
these inflammatory papers, will, I have no doubt, stand 
justified in that step before your country and all mankind." 
Perhaps also, he suggested, the abolitionists did not have 
their imagined clear legal right to the use of the mails for 
distributing insurrectionary papers. When the states be- 
came independent, he argued, "they acquired a right to 
prohibit the circulation of such papers within their terri- 
tories; and their power over the subject of slavery and its 
incidents was in no degree diminished by the adoption of 
the federal Constitution. . . . 

" Now," he asked, " have these people a legal right to 
do by the mail carriers and postmasters of the United States, 
acts, which, if done by themselves or their agents, would 
lawfully subject them to the punishment due felons of the 
deepest dye? Are the officers of the United States com- 
pelled by the Constitution and laws to become the instru- 
ments and accomplices of those who design to baffle and 

36 Niles' Register, vol. xlix, p. 7. 



POWER OF STATES TO INTERFERE WITH MAILS 1 39 

make nugatory the constitutional laws of the states, — ^to fill 
them with sedition, murder, insurrection, — to overthrow 
those institutions which are recognized and guaranteed by 
the Constitution itself? 

"And is it entirely certain that any existing law of the 
United States would protect mail carriers and postmasters 
against the penalties of the state laws, if they shall know- 
ingly carry, distribute or hand out any of these forbidden 
papers? ... It might be vain for them to plead that the 
postoffice law made it their clear duty to deliver all papers 
which came by mail. In reply to this argument, it might 
be alleged, that the postoffice imposes penalties on post- 
masters for 'improperly' detaining papers which come by 
the mail ; and that the detention of the papers in question 
is not improper because their circulation is prohibited by 
valid state laws. Ascending to a higher principle, it might 
be plausibly alleged, that no law of the United States can 
protect from punishment any man, whether a public officer 
or citizen, in a commission of an act which the state, acting 
within the undoubted sphere of her reserved rights has 
declared to be a crime. 

" Every citizen may use the mail for any lawful purpose. 
The abolitionists may have a legal right to its use for dis- 
tributing their papers in New York, where it is lawful to 
distribute them, but it does not follow that they have a legal 
right to that privilege for such a purpose in Louisiana or 
Georgia where it is unlawful."^^ Arguing in this manner, 
Kendall arrived at his conclusion that the postmasters should 
use their own judgment and act on their own responsibility. 

The postmaster general's letter has been so fully set forth 
because it presents, although it by no means solves, all the 
constitutional questions to which this situation gave rise. 
The disputed issues were destined never to come before the 
Supreme Court of the United States for a judicial consid- 
eration ; they were, however, to be meagrely discussed on the 
floor of the Senate and twenty years later were to be passed 

37 Niles' Register, vol. xlix, p. 9. 



140 THE POSTAL POWER OF CONGRESS 

Upon by the Attorney General in an official opinion. Was 
the Virginia law, including postal officials, constitutional? 
Could they be punished for receiving and circulating the 
prohibited matter when to do so was required by federal 
law as a part of their official duty? Could a citizen of the 
state be punished for receiving mail of a certain character? 
Were the states competent to exclude from their borders 
publications calculated to stir up disaffection among the 
slave population? 

Attorney General Caleb Gushing was called upon, in 
1857, to pass upon some of these questions. The facts of 
the particular case presented to him were these : The post- 
master of Yazoo City refused to deliver a newspaper for the 
" alleged cause that the same contained matter of which the 
tendency and object were to produce disaffection, disorder 
and rebellion among the colored population of the state of 
Mississippi ; and that the delivery of the same by him would 
constitute a penitentiary crime according to the laws of 
that state." The removal of the postmaster for malfea- 
sance in office was requested since the act of July 2, 1836, 
provided punishment for postmasters who unlawfully de- 
tained the mail. On the other hand, the laws of Mississippi 
made it a crime, punishable by not more than ten years' im- 
prisonment, to bring into the state or circulate any printed 
matter "calculated to produce disaffection among the slave 
population."^^ 

Gushing declared the postal power to be "conferred in 
very imperfect terms." The clause in the Constitution, he 
said, provides " for a means or incident without providing 
for the principal or end. Still we may take it for granted 
here, that, by this phrase, the states designed to communi- 
cate the entire mail power to the United States." But, on 
the other hand, it is indisputable that " each state has, and 
must have, jurisdiction as regards the matter of insurrec- 
tion or treason. To deny this would be to deny to the in- 

38 8 Opinions of the Attorneys General, 489 (1857) ; 5 Stat. L. 80. 



POWER OF STATES TO INTERFERE WITH MAILS I4I 

habitants of a state the power of self preservation, ... a 
right inalienable and imprescriptible." 

With this and the completeness of congressional power 
over the mails as premises, Gushing said the question was 
as follows: "Has a citizen of one of the United States 
plenary, indisputable right to employ the functions and the 
officers of the Union as the means of enabhng him to pro- 
duce insurrection in another of the United States ? Can the 
officers of the Union lawfully lend its functions to the citi- 
zens of one of the states for the purpose of promoting in- 
surrection in another state? 

"It is obvious to say that, inasmuch as it is the constitu- 
tional obligation of the United States to protect each of the 
states against ' domestic violence ' and to make provisions 
to ' suppress insurrection ' " it cannot be the right or duty 
of the United States or any of its officers "to promote, or 
be the instrument of promoting, insurrection in any part of 
the United States.''^^ 

Reasoning thus. Gushing concludes "that a deputy post- 
master or other citizen of the United States is not required 
by law to become, knowingly, the enforced agent or instru- 
ment of enemies of the public peace, to disseminate, in 
their behalf, within the limits of any one of the states of 
the Union, printed matter, the design and tendency of which 
are to promote insurrection in such state." But at the out- 
set, he said, any settlement of the particular case is involved 
in " a preHminary question of unsettled fact. The question 
is whether the contents of the particular newspaper had for 
their tendency and object to incite insurrection in the state 
of Mississippi." There are questions also as to the private 
rights of the addressee and the penal obligations of the 
deputy postmaster. These are for the courts. They only 
can "determine the question of the deputy postmaster's 



89 Mr. Gushing argued (p. 494) that "it cannot be unlawful to 
detain that which it is unlawful to deliver." But the word " unlaw- 
ful" in the congressional statute is not to be construed according 
to state regulations. Whether the detention of the mail is sanc- 
tioned must be determined by state standards. 



142 THE POSTAL POWER OF CONGRESS 

penal liability, whether on the side of the United States or 
of the state of Mississippi." The attorney general thus 
comes to no absolutely definite conclusion, but the impli- 
cation is very strong that there is no federal immunity from 
prosecution under the state law, and, conversely, that there 
can be no prosecution under federal law for neglect of 
duty or malfeasance. 

To the same effect, but more clear cut, was the opinion of 
John Randolph Tucker sent to Governor Wise of Virginia 
on November 26, 1859.*" The laws of Virginia provided 
that " if a postmaster or deputy postmaster know that any 
such book or writing [inciting the negroes to rebellion] 
has been received at his office in the mail, he shall give no- 
tice thereof to some justice, who shall inquire into the cir- 
cumstances and have such book or writing burned in his 
presence ; if it appears to him that the person to whom it is 
directed subscribed therefor, knowing its character, or 
agreed to receive it for circulation to aid the purposes of the 
abolitionists the justice shall commit such person to jail. 
If any postmaster or deputy postmaster violate this section, 
he shall be fined not exceeding $200." 

In his opinion. Tucker, as attorney general of the state, 
held the law to be entirely constitutional. It does not, he 
said, "properly considered, conflict with federal authority 
in the establishment of postoffices and postroads. This fed- 
eral power to transmit and carry mail matter does not carry 
with it the power to publish or circulate. . . . 

" With the transmission of the mail matter to the point 
of its reception the federal power ceases. At that point 
the power of the state becomes exclusive. Whether her 
citizens shall receive the mail matter is a question exclu- 
sively for her determination. . . . 

" It is true that the postmaster is an officer of the federal 
government ; but it is equally true that he is a citizen of the 
state. By taking a federal office he cannot avoid his duty 

*0 26 Cong. Rec, Part 9, Appendix, Part I, p. 4ff. (53d Cong., 2d 
Sess.). 



POWER OF STATES TO INTERFERE WITH MAILS 1 43 

as a citizen ; and his obligation to perform the duties of his 
office cannot absolve him from obedience to the law of the 
Commonwealth. . . . 

" I have no hesitation in saying that any law of Congress 
impairing directly or indirectly this reserved right of the 
state is unconstitutional, and that the penalty of the state 
law would be imposed upon a postmaster offending against 
it, though he should plead his duty to obey such unconstitu- 
tional act of Congress." 

Tucker's memorandum was sent to Postmaster General 
Holt, who cited Cushing's opinion (which Tucker had not 
seen), and ruled against the supremacy of the federal law. 
" The people of Virginia," said Holt, " may not only forbid 
the introduction and dissemination of such documents 
within their borders, but if brought there in the mails they 
may, by appropriate legal proceeding, have them destroyed. 
They have the same right to extinguish firebrands thus im- 
piously hurled into the midst of their houses and altars that 
a man has to pluck the burning fuse from a bombshell which 
is about to explode at his feet." 

It would seem, however, that such reasoning, while care- 
ful and persuasive, is erroneous. At the time these opin- 
ions were rendered, the absolute supremacy of federal law, 
when constitutionally enacted, was not accepted without 
question. It is true that, prior to this, provision had been 
made for the removal, before trial, of a prosecution arising 
under the revenue laws of the United States, and also that 
federal judges should have power to grant writs of habeas 
corpus in all cases of a prisoner or prisoners in jail or con- 
finement " where he or they shall be committed or confined 
on, or by any authority or law, for any act done, or omitted 
to be done in pursuance of a law of the United States, or 
any order, process or decree of any judge or court thereof."*^ 

To be sure, this was only a means of checking state ac- 
tion, but from the doctrine of federal supremacy it logically 
follows that it is not within the power of a state to punish 

41 Act of March 2, 1833 (4 Stat. L. 632). 



144 THE POSTAL POWER OF CONGRESS 

acts done under authority of federal law. At the time the 
question of incendiary publications was acute, the Supreme 
Court had not decided the line of cases upholding the right 
of removal to federal courts and sanctioning the release of 
officers for acts done in pursuance of federal authority. 
These cases declared it to be " an incontrovertible principle 
that the government of the United States may, by means of 
physical force exercised through its agents, execute on every 
foot of American soil, the powers and functions that belong 
to it. This necessarily involves the power to command 
obedience to its laws, and hence the power to keep the peace 
to that extent. This power to enforce its laws and to exe- 
cute its functions does not derogate from the power of the 
states to execute its laws at the same time and in the same 
places. The one does not exclude the other, except where 
both cannot be executed at the same time. In that case the 
words of the Constitution itself show which is to yield. 
* This Constitution, and all laws which shall be made in 
pursuance thereof . . . shall be the supreme law of the 
land.' "*2 

And on the basis of this principle, there is no reason to 
hold that the postal employees could not be punished for 
distributing the incendiary matter when it was their federal 
duty so to do. To be sure, as urged by Cushing and Tucker, 
the United States guarantees each state a republican form of 
government and protects it against domestic violence, but 
this does not mean that a law which is passed by Congress to 
apply uniformly to the whole country, and which may, on 
account of peculiar local conditions, aid insurrectionary 
movements in certain of the states, is thereby unconstitu- 
tional. The resort of the states is not to the courts, but to 
Congress for the repeal of the harmful measure. Further- 
more, the guarantee does not obligate the United States to 
insure a state against the occurrence of any violence, but 

42 Ex parte Siebold, lOO U. S. 371 (1879). See also Tennessee v. 
Davis, 100 U. S. 257 (1879), and i Willoughby on the Constitu- 
tion, 124. 



POWER OF STATES TO INTERFERE WITH MAILS 1 45 

simply to protect it when the violence is attempted. Since, 
therefore, the federal laws made criminal the detention of 
any mail matter, with only such exceptions as Congress 
might introduce, there was no way in which the states might 
enforce their laws against incendiary literature, unless they 
could exclude it absolutely from their borders. 

As to this power, there are no judicial precedents, but the 
carriage of the mails being under federal auspices and Con- 
gress having a property right in them, the authority of the 
states to exclude, if it exists at all, is certainly narrower 
than that in regard to interstate commerce. As to this, the 
states may exclude from their borders only such articles as 
are intrinsically unfit for commerce and unmerchantable. 
The Supreme Court enumerated, as examples, "rags or 
other substances infected with the germs of yellow fever, 
or the virus of small pox, or cattle, or meat or other provi- 
sions that are diseased or decayed." These articles "may 
be rightly outlawed as intrinsically and directly the im- 
mediate sources and causes of destruction to human health 
and life."*^ Publications calculated to incite the slaves to 
rebellion would not-f all within this classification. The con- 
clusion, then, must be that in disseminating the incendiary 
literature, the postal agents acted properly, and that the 
state laws were inoperative as applied to them. But if the 
states have a restricted power of exclusion, such as that de- 
fined in the Bowman case, it is, in effect, a nullity, since cir- 
cumstances can hardly be imagined under which its exercise 
might take place, without delaying the mails, or violating 
federal statutes which attach penalties for opening the mail 
and interfering with it while in transitu. 

There remains the further question whether a state is 
competent to forbid its citizens to receive certain mail 
matter, and here also the interstate commerce analogy af- 
fords an answer. By a long line of decisions, principally 
in regard to intoxicating liquors, it has been established 



*8 Bowman v. Chicago & Northwestern R. Co., 125 U. S. 46^ 
(1888). ^ ^ 



10 



146 THE POSTAL POWER OF CONGRESS 

that a state may not interfere with a commodity until it has 
reached the consignee, who has a right to receive shipments 
from without the state.** If the state forbids possession, 
no matter how acquired, then the question of receiving be- 
comes academic, since it would be impossible to separate the 
two acts. So also, if Congress has excluded a commodity 
from interstate commerce, then the consignee's right to re- 
ceive this commodity has been taken away, and the state has 
plenary power.*^ The same reasoning applies to the re- 
ceiving of mail matter : the state would be competent to 
punish only if Congress has forbidden the use of the mails, 
as is the case, for example, with lottery tickets and obscene 
literature. But in any event, a law directed against receiv- 
ing certain mail matter could just as well forbid possession, 
and as the state has power in the latter case, the distinction 
is without importance except in so far as the possession is 
more difficult to detect than the receipt. Certain it is, how- 
ever, that, as was attempted by the incendiary literature 
legislation, the state may not punish a man for taking from 
the mails what the federal government permits to be sent. 

This conclusion is applicable to the validity of legislation 
forbidding the advertisement of intoxicating liquors. The 
state may not keep out, or prevent the receipt of, such ad- 
vertisements or journals containing them, when sent through 
the mails or interstate commerce ; it may forbid the sale of 
such journals if not in their "original packages,"*® and if it 
attempts to penalize the possession of such advertisements, 
there is no constitutional question so far as the mails are 
concerned. 

The use of the mails may constitute a crime against the 
state, but the Circuit Court of Appeals for the Fourth Cir- 



44 See, inter alia, Leisy v. Hardin, 135 U. S. 100 (1890), and 
Rhodes v. Iowa, 170 U. S. 412 (1897). 

*5 This is the theory of the Webb-Kenyon Act. See my papers, 
"The Power of the States over Commodities Excluded by Con- 
gress from Interstate Commerce," 24 Yale Law Journal, 567 (May, 
1915), and "State Legislation under the Webb-Kenyon Act." 28 
Harvard Law Review, 225 (January, 1915). 

*^ See the reasoning in State v. Delaye, 68 So. 993 (Ala., 191 5). 



POWER OF STATES TO INTERFERE WITH MAILS 1 4/ 

cuit has gone much farther than previous decisions and in a 
recent case declared: "It makes no difference that the 
United States Mail was used for the solicitation [of orders 
for intoxicating liquors]. The federal government does 
not protect those who use its mails to thwart the police 
regulations of a state made for the conservation of the wel- 
fare of its citizens. The use of the mail is a mere incident 
in carrying out the illegal act, and affords no more protec- 
tion in a case like this than a like use of the mails to promote 
a criminal conspiracy, or to perpetrate a murder by poison, 
or to solicit contributions of office holders in violation of 
the civil service law, or to obtain goods under false pre- 
tenses."*^ 

In Adams v. The People*^ — the case probably meant but 
not cited by the last clause of the quotation — there was an 
indictment for obtaining money under false pretenses, al- 
though the defendant was a resident of Ohio and had never 
been in New York. So also, in cases referred to by the 
Circuit Court of Appeals, the solicitation through the mails 
of orders for intoxicating liquors has been punished where 
the matter was mailed and received within the limits of the 
state and there was no interstate commerce involved.*^ But 
the Supreme Court decisions cited by the Circuit Court of 
Appeals simply hold that Congress may make the use of 
the mails a crime when in furtherance of a purpose to 
violate federal laws and are obviously not precedents for 
sustaining the West Virginia legislation.^^ 

Now, the sine qua non of forbidding soHcitation by means 
of the postoffice is that the sale of the intoxicating liquor 
is itself a crime; otherwise the state could have an unre- 
strained power to prescribe the purposes for which the mails 
might be used. The Circuit Court of Appeals evidently 
reasoned on this basis and considered as constitutional the 

^^West Virginia v. Adams Express Co., 219 Fed. Rep. 794 (1915). 

48 I N. Y. 173 (1848). 

49Hayner v. State, 83 Ohio St 178 (1910). See also Zinn v. 
State, 83 Ark. 273, 114 S. W. 227 (1908). 

sou. S. V. Thayer, 209 U. S. 39 (1908), and In re Palliser, 136 
U. S. 257 (1890). 



148 THE POSTAL POWER OF CONGRESS 

section of the state law which provides that "in case of a 
sale in which a shipment or delivery of such liquors is made 
by a commion or other carrier, the sale thereof shall be 
deemed to be made in the county wherein the delivery 
thereof is made by such carrier to the consignee, his agent, 
or employee." The Court held that such a regulation was 
sanctioned by the Webb-Kenyon Act,^^ although admittedly 
invalid if not thus justified. This presents a question that 
is beyond the purview of the present study, but it is obvious 
that if the sales could be made, then the solicitation could 
not be made a crime ; and it may be added, parenthetically, 
that the Court probably erred in holding that the sales were 
forbidden. 

The case nearest in point — Rose Co. v. State^^ — is not 
cited by the Circuit Court's opinion. The defendant cor- 
poration in Tennessee mailed circulars advertising liquors 
to residents of Barton County, Ga. The Georgia law for- 
bade solicitations where it was unlawful to sell, but the 
Supreme Court of Georgia held that shipments could be 
made from without the state under the protection of the 
commerce clause, and it could not, therefore, be a crime to 
use a federal agency in furtherance of a purpose that was 
sanctioned by the Federal Constitution. 

It may be said, then, that the use of the mails may be 
penalized only when in furtherance of a purpose that is un- 
lawful; nor can it be argued — as was done with consider- 
able force by the late James C. Carter against the exclusion 
of lottery tickets from the mails^^ — that the state may punish 
only when the purposes are mala in se and not when merely 
mala prohihita. If the state has the power, it may define 
" unlawful," but punishment cannot take place if the act 

51 2,7 Stat. L. 699. For a further discussion of this point see my 
paper, " Unlawful Possession of Intoxicating Liquors and the Webb- 
Kenyon Act," 16 Columbia Law Review, i (1916). 

52133 pa. 353, 65 S. E. 770, 36 L. R. A. (n. s.) 443 (1909), and 
note, which says that the case is one primae impressionis. It should 
be said that the decision in the Court of Appeals was contra. See 
4 Ga. App. 588, 62 S. E. 117 (1908). 

53 In re Rapier, 143 U. S. no (1892). 



POWER OF STATES TO INTERFERE WITH MAILS 1 49 

sought to be effected by the use of the mails is permitted 
by state law, or if the inhibition is invalid, as is, it would 
seem, the case with the West Virginia legislation. Finally, 
it is difficult to see how the state may forbid anything but 
direct solicitation. A magazine or newspaper proprietor 
who publishes the advertisements does not use the mails for 
the purpose of consummating a crime, and the advertiser 
does not use the mails at all. The solicitation, therefore, 
must be direct.^* 

5* To make the record complete it should be added that the federal 
courts have exclusive jurisdiction of all offenses embraced by stat- 
ute, committed in a postoffice owned by the United States or juris- 
diction over which has been ceded by the state. Battle v. U. S., 209 
U. S. 36 (1908). But the fact that a train is engaged exclusively 
in carrying the United States mail does not preclude the jurisdiction 
of a state court of a prosecution for the murder of an engineer, 
committed by derailing the train. Crossley v. California, 168 U. S. 
640 (1898). 



CHAPTER VI 
The Extension of Federal Control over Postroads 

Federal Ownership of Railroads. — In an address at In- 
dianapolis on May 30, 1907, President Roosevelt discussing 
the necessity for further congressional regulation of rail- 
way companies, declared that, " in so far as the common car- 
riers also transport the mails, it is, in my opinion, probable 
that whether their business is or is not interstate, it is to 
the same extent subject to federal control, under that clause 
of the Constitution granting to the national government 
power to establish postroads, and therefore by necessary 
implication power to take all action necessary in order to 
keep them at the highest point of efficiency."^ 

The placing of such a construction upon the postroads 
clause aroused a storm of criticism, but, in the main. Presi- 
dent Roosevelt was correct in his assertion of congressional 
authority. Municipal streets used by mail carriers or 
wagons are postroads and federal control exists to the ex- 
tent of insuring safe passage of the mail and prohibiting 
private competition; by the rural free delivery system, 
moreover, state wagon roads are under federal authority to 
the same extent. That much has been made evident by the 
preceding discussion. 

As to common carriers between the states, congressional 
regulation has been very largely based upon the commerce 
clause of the Federal Constitution, and the transportation 

1 The Roosevelt Policy, vol. ii, p. 486. In his Provincetown 
address (August 20, 1907) President Roosevelt returned to the 
same theme, saying : " I believe, furthermore, that the need for 
action is most pressing as regards those corporations which, be- 
cause they are common carriers, exercise a quasi-public function; 
and which can be completely controlled, in all respects, by the fed- 
eral government by the exercise of the power conferred under the 
interstate commerce clause, and, if necessary, under the post-road 
clause of the Constitution." Ibid., p. 564. 

150 



EXTENSION OF FEDERAL CONTROL OVER POSTROADS 1 5 I 

of the mails has been a secondary, not primary, ground to 
justify the authority exerted. This commercial power does 
not extend to intrastate undertakings, but if these were con- 
cerned with furnishing postal facilities they could be brought 
under federal control This doctrine, however, should be 
carefully qualified so as not to assert a right in Congress to 
assume general supervision, for example, of municipal trac- 
tion companies, an incidental function of which is to carry 
the mails. The control could be exerted only so far as was 
reasonably necessary to insure the safe, speedy, and unob- 
structed transportation of government property. 

This control, as the Debs^ case made clear, is, in the case 
of interstate carriers at least, and by parity of reasoning in 
the case of intrastate undertakings also, not confined to 
mere legislative rules, enforceable in the courts, but the 
executive power may remove obstructions to the carriage 
of the mails. The national government is charged " with 
the duty of keeping those highways of interstate commerce 
free from obstruction, for it has always been recognized as 
one of the powers and duties of a government to remove 
obstructions from the highways under its control." On this 
power rests, in large part, at least, the act of October i, 
1888,^ providing for arbitration between railroad companies 
and their employees and subsequent acts for the same pur- 
pose. The full power has not yet been exerted ; it extends 
to the compulsory settlement of such disputes (subject to 
the limitations of the Thirteenth Amendment),* and to the 
enforcement by federal authority of such regulations as may 
be necessary to remove obstructions and insure the carriage 
of the mails without delay, even in the case of streets within 
a town and with reference to municipal traction companies. 

It is no longer open to doubt that the federal government, 
under its right of eminent domain, upon the payment of 
adequate compensation judicially determined, may compel 
service from railroads by which existing terms for the car- 

2158U. S. 564 (1895). 

325 Stat. L. 501. 

* See 2 Willoughby on the Constitution, 855. 



152 THE POSTAL POWER OF CONGRESS 

riage of the mails may have been deemed unsatisfactory. 
This may be done either by assuming the temporary man- 
agement of the roads for such a purpose, or by enforcing 
criminal provisions against obstructing or delaying the 
mails. While such a power has not been exercised, it cer- 
tainly exists.^ 

But the Senate Committee which in 1874 declared that the 
government could thus compel the transportation of the 
mails, went still further and maintained that Congress could 
"take absolutely, on paying just compensation therefor, 
without the consent either of the owner or of the state 
within which such road may be, any railroad, its rolling 
stock and equipments, within the United States for the pub- 
lic use and transportation over the same of the United 
States mails," — an advanced position for this period when 
Congress had as yet attempted slight regulation of the rail- 
roads. 

It should require but little argument, I think, to show that 
if Congress decides to nationalize the railways of the coun- 
try it may constitutionally do so under its power to establish 
postroads. Federal charters to railroads and bridge com- 
panies have been pitched upon the postal, commercial, and 
war powers; they have granted rights of way through the 
states, immunity from taxation, powers of eminent domain, 
and the right of resort to the federal courts on the ground 
of federal citizenship. Congress has, moreover, the right 
of eminent domain even for patriotic purposes, — to pre- 
serve the Gettysburg battlefield, — a much more remote pub- 
lic purpose than that of establishing postal facilities under 
the specific authorization in the Constitution.^ 

In Osborn v. The Bank of the United States,^ it was 
urged upon the Supreme Court that the bank was not an 
instrument of the government and a distinction was drawn 
between it and an agency for which provision was made in 

543d Cong., 1st Sess., Senate Rept. No. 478. 

^California v. Pacific Railroad Companies, 127 U. S. i (1887);. 
U. S. V. Gettysburg Electric Co., 160 U. S. 668 (1896). 
79 Wheat. 738 (1824). 



EXTENSION OF FEDERAL CONTROL OVER POSTROADS 1 53 

the Constitution. " The postoffice is established by the gen- 
eral government," said counsel. " It is a public institu- 
tion. The persons who perform its duties are public offi- 
cers. No individual has or can acquire any property in it. 
For all services performed a compensation is paid out of 
the national treasury ; and all money received upon account 
of its operations is public property." The business "is of 
a public character and the charge of it expressly conferred 
upon Congress by the Constitution."^ This distinction be- 
tween the public nature of postal facilities and the private 
character of much of the business done by the bank was 
urged to show that the latter was subject to taxation by the 
state. 

To this argument Chief Justice Marshall replied that if 
the premises were true, the conclusion would be inevitable. 
But there was a political connection between the bank and 
the government and " Congress was of the opinion that these 
faculties [of doing private business] were necessary to en- 
able the bank to perform the services which are exacted 
from it, and for which it was created. . . . That the exer- 
cise of these faculties greatly facilitates the fiscal operations 
of the government is too obvious for controversy : and who 
will venture to affirm that the suppression of them would 
not materially affect these operations, and essentially im- 
pair, if not totally destroy, the utility of the machine to the 
government?" If the private business engaged in has the 
result of making the corporation " a more fit instrument for 
the purposes of the government than it otherwise would be," 
then " the capacity to carry on this trade is a faculty indis- 
pensable to the character and objects of the institution." 

There can be no question of the right of the federal gov- 
ernment itself to construct highways for the transportation 
of the mail and to charge tolls for their use ; nor can there 
be any doubt of its power to own and operate carriers, and 
incidentally to engage in business of a private nature if 
this increases the efficiency of the governmental agency. 

89 V/heat. 785 (1824). 



154 THE POSTAL POWER OF CONGRESS 

Even the fact that these private undertakings, disassociated 
from the carriage of the mails, would be by far the most 
important, would make no difference, according to the rule 
as announced by Chief Justice Marshall. On this theory, 
moreover, can be justified the assumption by the federal 
government of the functions of a bank and common carrier, 
through the postal savings and money order systems, and 
the parcel post, even though these activities can also be sup- 
ported as proper elements of a postal power as it is inter- 
preted in other countries. 

If, therefore, the federal government is competent to es- 
tablish postal facilities and use them for ancillary yet help- 
ful purposes, there is no reason why it may not exercise its 
power of eminent domain and take possession of any or all 
agencies now used in the transportation of the mails, upon 
the payment of just compensation; own and operate these 
agencies, use them to carry the mails, and to perform all 
other functions which would "greatly facilitate the fiscal 
operations of the government." In this would, of course, 
be included the smaller power of creating a corporation, per- 
haps owned in part by the government, to take over and 
operate the railroads of the country for the same purposes. 
The connection between such a corporation and the govern- 
ment would be political and public as Marshall pointed out, 
but it would be created to carry out a power specifically men- 
tioned in the Constitution, and its public nature would 
therefore be much more apparent. There is thus an error 
of understatement when it is urged that "no valid distinc- 
tion can be drawn between the vital necessity of the right to 
trade in money to a fiscal instrumentality of the govern- 
ment, and the right to trade in transportation to a transpor- 
tation instrumentality of the government."® 

It is an arguable proposition that such a purpose could be 
accomplished under the commercial power which is simply 
that of " regulation." By many the opinion is held that 
this of itself is sufficient to give Congress the right to compel 

^ Farrar, The Post Road Power (Hearings before Committee on 
Interstate Commerce, United States Senate, 626. Congress, p. 1498 ff). 



EXTENSION OF FEDERAL CONTROL OVER POSTROADS 1 55 

industrial corporations doing an interstate business to secure 
federal charters. The constitutionality of a law to compel 
interstate railroads to incorporate under the commerce clause 
is even less doubtful, and the Supreme Court has upheld 
the exercise of the commercial power in condemning the 
property of a state corporation organized to improve navi- 
gation, just compensation including the value of the fran- 
chise which was destroyed/^ Federal incorporation, then, 
may be required on the ground that it is necessary for the 
efficient regulation of the carriers. On the other hand, the 
postal clause gives Congress the right to establish instru- 
mentalities for the transportation of the mails, and the as- 
sumption of control or ownership under this grant of power 
is more surely within the rule as laid down by Marshall in 
Osborn v. The Bank of the United States. 

In 1792 the proposal was made in Congress that the pro- 
prietors of mail stages be permitted to carry passengers, 
but the motion was lost, on the ground that under the postal 
clause Congress did not provide the necessary authority .^^ 
It is true, also, that the framers of the Constitution did not, 
because they could not, contemplate the taking over by Con- 
gress of the railways of the country. And, as the preced- 
ing discussion has attempted to show, during the early days 
of legislative activity under the postroads clause, the con- 
sent of the states was required for construction within 
their borders, and they acceded in one form or another to 
several of the acts granting federal charters.^^ But, as the 
Supreme Court of the United States has said in language 
already quoted, the powers of Congress "are not confined 
to the instrumentalities of commerce or of the postal service 
known or in use when the Constitution was adopted, but 
they keep pace with the progress of the country." This, 
coupled with the right of eminent domain, is, it is sub- 
mitted, sufficient to enable the national government, either 

i<> Monongahela Navigation Co. v. U. S., 148 U. S. 312 (1893). 

11 Annals of 2d Congress, pp. 303-309. 

12 See Prentice, Federal Power over Corporations and Carriers, 
p. 152. 



156 THE POSTAL POWER OF CONGRESS 

directly or through a federally chartered corporation, to 
take over and operate the railroads of the country for the 
carriage of the mails, with the power of engaging in the 
transportation of freight or passengers, to the extent that 
Congress may desire.^^ 

Postal Telegraphs and Telephones. — The case last cited 
is ample authority for Congress to take over and operate 
the telegraph and telephone systems of the country, for the 
Supreme Court made its pronouncement in upholding the 
act of July 24, 1866,^* "to aid in the construction of tele- 
graph lines, and to secure to the government the use of the 
same for postal, military and other purposes." The act, 
among other things, gave companies complying with its 
terms the right to erect their poles and string their wires 
along any military or post road, and the Supreme Court de- 
clared void a state statute which attempted to give exclusive 
rights to a local company. 

By the third section of the congressional act, it was pro- 
vided that " the United States may, at any time after the 
expiration of five years from the date of the passage of 
this act, for postal, military or other purposes, purchase all 
the telegraph lines, property and effects of any or all of said 
companies at an appraised value, to be ascertained by five 
competent, disinterested persons, two of whom shall be se- 
lected by the postmaster general of the United States, two 
by the company interested, and one by the four so previously 
selected." The United States therefore reserved to itself 
the power which it would otherwise have had, — that of 
eminent domain in respect to telegraph facilities. In his 
report for 1913, the postmaster general said: 

" A study of the constitutional purposes of the postal es- 
tablishment leads to the conviction that the Post Office De- 
is Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 
U. S. I (1878). Congress may authorize the secretary of war to 
lease upon terms agreed upon any excess of water power which 
results from the conservation of the flow of a river, and the works 
which the government may construct. U. S. v. Chandler-Dunbar 
Water Power Co., 229 U. S. 53 (1913). 
1* 37 Stat. L. 560. 



EXTENSION OF FEDERAL CONTROL OVER POSTROADS 15/ 

partment should have control over all means of the com- 
munication of intelligence. The first telegraph line in this 
country was maintained and operated as a part of the postal 
service, and it is to be regretted that Congress saw fit to 
relinquish this facility to private enterprise. The monopo- 
listic nature of the telegraph business makes it of vital im- 
portance to the people that it be conducted by unselfish in- 
terests, and this can be accomplished only through govern- 
ment ownership." If Congress decides to take over these 
facilities, its action will be clearly within the postal power.^^ 

15 For an account of proposals in Congress to take this action, a 
history of its recommendation by successive postmasters general, 
and much valuable statistical information concerning the operation 
of the American privately owned, and the foreign publicly owned, 
telegraph and telephone systems, see " Government Ownership of 
Electrical Means of Communication," 63d Congress, 2d Sess., Senate 
Doc. No. 399. 



CHAPTER VII 

The Extension of Federal Control through Exclu- 
sion FROM the Mails 

It has already been indicated that, while the postal power 
of Congress is plenary, extending to the classification and 
exclusion of articles presented for transmission through the 
mails, it is not without limits ; that its exercise is restricted 
by provisions found in the Constitution itself, — the guar- 
antees of a free press and immunity from unreasonable 
searches and seizures. There is, moreover, a further im- 
portant limitation in that an arbitrary refusal of postal facili- 
ties would seem to be a denial of due process of law. 

The Supreme Court of the United States has not yet 
been called upon to set any limit to congressional action 
under this clause ; it has thus far upheld every law restrict- 
ing the use of the postoffice. But it should be remembered 
in the discussion which follows that all existing exclusions 
from the mails can be justified as partaking of the nature of 
police regulations; the prohibited articles are either in- 
herently injurious, inimical to the health, safety and well 
being of recipients, or the use of the mails is denied because 
it would be in furtherance of a design that is condemned 
by moral considerations or is against public policy. 

That this Index Expurgatorhis will be extended may 
be taken for granted. It is in the nature of police regula- 
tions that they expand more inclusively and rigorously. For 
example, in 191 2 Congress excluded from the mails moving 
picture films of prize fights.^ At the third session of the 
Sixty-third Congress, moreover, bills were introduced and 
urged to deny absolutely the use of the mails to any person 
who, in the opinion of the postmaster general, "is engaged 

"^ Z7 Stat. L. 240. 

158 



EXTENSION THROUGH EXCLUSION FROM MAILS 1 59 

or represents himself as engaged in the business of publish- 
ing " any books or pamphlets of an indecent, immoral, scur- 
rilous or libelous character. No letter, packet, parcel, news- 
paper, book or other thing, said one bill, " sought to be 
sent through the postoffice by or on behalf or to or on 
behalf of such person shall be deemed mailable matter, and 
the postmaster general shall make the necessary rules and 
regulations to exclude such nonmailable matter from the 
mails."^ The proposed legislation was aimed at certain 
publications devoted to the unrestrained, defamatory and 
often indecent criticism of particular religious denomina- 
tions and their clergy. 

The constitutionality of this legislation, however, is open 
to serious doubt. There can, of course, be no question as 
to the impairment of religious freedom, for, while this re- 
quires freedom of attack, it cannot '' justify the violation of 
public order and common decency " ; or, as put by another 
authority, " the prohibition does not prevent Congress from 
penalizing the commission of acts, which, although justified 
by the tenets of a religious sect, are socially or politically 
disturbing, or are generally reprobated by the moral sense 
of civilized communities."^ Nor is the objection that the 
freedom of the press would be impaired, since, admitting 
that a denial of postal facilities would be an impairment of 
the liberty of publication, the federal guarantee does not 
include the right to publish scurrilous or libelous utter- 
ances on matters of private concern ; or, to take Hamilton's 
test, there is no publication of truth, with good motives and 
for justifiable ends.* 

If the proposed legislation simply made such matter non- 
mailable and penalized any attempt to use the postoffice for 
its carriage, it would probably be free from objection. But 
under the bill quoted above, if it was established that a 

2 See Exclusion of Certain Publications from the Mails, p. 3 ff. 
(Hearing before the Committee pn the Postoffice and Postroads, 
House of Representatives, 63d Cong., 3d Sess.). 

3 Freund, Police Power, p. 509 ; 2 Willoughby on the Constitu- 
tion, 841. 

4 Schofield, Freedom of the Press in the United States, p. 90. 



l60 THE POSTAL POWER OF CONGRESS 

person made a practice of sending such matter through 
the mails, the postmaster general would have the absolute 
authority arbitrarily to deny him facilities for all his mail 
matter, much of which would be admittedly innocuous ; and 
whether, if the objectionable practices were suspended, the 
person would again be permitted to make use of the govern- 
mental agency, would depend on the discretion of the post- 
master general. This official's authority would, in effect, 
be to punish for acts not made criminal by Congress. Such 
legislation would for this reason seem unconstitutional as 
well as ill-considered. 

But this exclusion is in a class by itself. It is an attempt 
to reach effectively an evil over which there is admittedly 
some federal control, for Congress may prevent the trans- 
mission of scurrilous papers. The objection is to the 
method of exercise rather than to the existence of the power. 
Of a different character is the strongly urged proposal that 
congressional control of the mails may be used as a valid 
means to compel the performance or non-performance of 
certain acts by persons, over whom there exists no direct 
federal authority. In other words, it is contended that 
Congress has a plenary and arbitrary power to determine 
who shall use the mails and what articles shall be carried, 
and therefore may impose any antecedent conditions, no 
matter how onerous or remote, upon the enjoyment of 
postal facilities. With the ever increasing frequency and 
importance of problems demanding a solution by the federal 
government in the absence of effective, and in some cases 
even attempted, settlement by the states, Congress is under 
the necessity of casting about for indirect methods of exert- 
ing control, since direct action would be unconstitutional. 
The use for this purpose of the taxing and commercial 
powers has in some instances been made, and in others 
is very strongly urged. It is also argued that Congress 
may refuse corporations, to whose size, organization, or 
activities, it objects, the right to sue in federal courts and 
that national banks may be ordered not to receive their 



EXTENSION THROUGH EXCLUSION FROM MAILS l6l 

deposits. In asking, therefore, whether it is constitutional 
for Congress to exert such indirect control under the cloak 
of regulating the mails, we will merely consider one phase 
of the larger subject of indirect government. 

Such an exercise of power over the mails has been advo- 
cated to secure corporate publicity. " Congress," says one 
who is in favor of such extension of federal control, " by 
regulating the use of the mails and channels of interstate 
commerce, may compel every corporation engaged in any 
business, whether interstate or not, to give publicity to its 
corporate affairs, by legislation denying the use of the mails 
and the instruments of interstate commerce for the trans- 
mission of any matter concerning the affairs or business of 
any corporation that fails to make and file reports of the 
fullest nature concerning its organization and business, such, 
for example, as are already exacted from interstate carriers 
under the Interstate Commerce Act. Such legislation would 
be valid and enforceable."^ 

It has been suggested in Congress® that an effective puni- 
tive method of dealing with monopolistic corporations would 
be to deny them postal facilities. '^ If such corporations were 
violating the Sherman Act or were otherwise outlawed by 
valid legislation. Congress would have the right to deny 
them the use of the mails, since it would be absurd for the 
general government to aid, through its instrumentalities, 
persons or corporations violating laws which it had passed. 
An illustrative case is afforded by the provision of the 
Panama Canal Act of August 24, 191 2, which says that no 

5 Pam, " Powers of Regulation Vested in Congress," 24 Harvard 
Law Review, 77 (December, 1910). 

® As stated by Senator Newlands : " Congress can prohibit the 
use of the mails by any organization which it considers unlawful or 
injurious to the public welfare. It can, therefore, declare that any 
combination organized for the purpose of monopolizing the manu- 
facture, production or sale of any article of commerce, or for the 
purpose of preventing competition is illegal, and can forbid and 
prohibit the use of the mails of the United States in aid of such 
business." 33 Cong. Rec. (App.), p. 675. See also Remarks of 
Lanham, S3 Cong. Rec, p. 6324. 

'''This was rejected by a House Committee on the ground that it 
was inadequate. See 56th Cong., ist Sess., House Rept. No. 1501. 
II 



1 62 THE POSTAL POWER OF CONGRESS 

vessel owned by any company doing business in violation 
of any of the acts of Congress relating to interstate com- 
merce " shall be permitted to enter or pass through said 
canal."^ 

But it is a different proposition to urge that Congress may 
deny the use of the mails in order to compel corporate 
publicity, when, if the legislation directly commanded com- 
pliance, it would be clearly ultra vires. Thus, the Pujo 
Money Trust Committee proposed " that Congress prohibit 
the transmission by the mails or by telegraph or telephone 
from one state to another of orders to buy or sell or quota- 
tions or other information concerning transactions on any 
stock exchange, unless [among other conditions] such ex- 
change shall ( I ) be a body corporate of the state or territory 
in which it is located."^ This proposal was based upon the 
conclusion of a majority of the committee that " Congress 
has power to prevent the use of the mails to disseminate 

837 Stat L. 560 (sec. 11). See also Mr. Adamson's bill, H. R. 
9576, 63d Cong., 2d Sess. (December i, 1913). 

9 Majority Report of the Committee Appointed to Investigate the 
Concentration of Control of Money and Credit (February 28, 
I9I3)> P- ^^2. A bill embodying these recommendations is given 
on p. 170. It denies the use of the mails to any stock exchange, 
" unless such exchange has been incorporated under the laws of the 
state or territory at which its business is conducted, or unless the 
charter and by-laws of such exchange or the law under which it is 
organized shall contain regulations and prohibitions satisfactory to 
the Postmaster General safeguarding the transactions of such ex- 
change, the character of the securities dealt in thereon, the genuine- 
ness of the quotations thereof, and all other information concern- 
ing such transactions that is to be carried through the mails, and 
by telegraph and telephone beyond the limits of the state of the 
organization of such exchange against fraud and deceit in the fol- 
lowing particulars " : These require publicity as to the assets and 
stock issues of a corporation before its securities may be listed ; 
an annual report by the corporation whose securities are listed, to 
the secretary of the exchange and the postmaster general, giving a 
detailed statement of receipts, expenses, net earnings, salaries and 
commissions paid to officers or directors, etc. ; prohibition of arbi- 
trary action by a stock exchange in striking securities from its list, 
of artificial manipulation of securities, of hypothecation of securities 
purchased on a margin, of " short-selling," etc. The bill also con- 
tains many requirements as to publicity. For a discussion of the 
economic features of the Pujo Committee's proposals, see Regu- 
lation of the Stock Exchange, p. 585 ff. (Hearings before the Com- 
mittee on Banking and Currency, United States Senate, 63d Cong., 
2d Sess.). 



EXTENSION THROUGH EXCLUSION FROM MAILS 1 63 

quotations or other information concerning transactions on 
stock exchanges whose faciHties are used for purposes of 
gambling and price manipulation, and that exercising its 
wide choice of means to that end, it may prohibit the trans- 
mission through the mails of any information relating to 
transactions on exchanges refusing submission to regula- 
tions reasonably adapted to preventing the objectionable 
practices."^® 

The question arises whether such an exclusion would not 
violate the freedom of the press, since newspapers and other 
publications could not use the mails if they contained any 
information, however harmless and valuable, concerning any 
transactions (to which Congress might have no objection) 
of the exchange which has refused to accept regulations 
which the general government had no power directly to 
impose. Newspapers would be unable to circulate truth on 
matters of public concern if the published information as 
to stock quotations, although harmless in its nature, con- 
cerned an institution whose practices Congress was indirectly 
attempting to check. If the law were carefully confined to 
the prohibition of tlie circulation of publications which con- 
tained matter relating to gambling transactions, there would 
be no abridgment of the guarantee of the First Amendment. 
The exclusion would be similar to that of lottery advertise- 
ments, or matter designed to aid in defrauding recipients. 
But as proposed by the Pujo Committee, the law would, at 
least in part, if not as a whole, operate as an abridgment of 
the freedom of the press. 

Apart from this consideration, however, the theory of the 
law, differently stated, is that Congress, under its power to 
exclude from the mails gambling contracts and matter de- 
signed to defraud recipients, may go farther and exclude 
harmless matter because this seems a necessary and ade- 
quate means of compelling the exchanges to take out state 
charters, a concession thought by Congress to be desirable 

10 Majority Report, p. 122. 



164 THE POSTAL POWER OF CONGRESS 

in order to prevent the gambling and other harmful prac- 
tices, over which there is no direct national control. 

Still other proposals would extend federal authority in a 
similar manner. It is urged, for example, that Congress 
prohibit the use of the mails by fire insurance companies 
which at present are, by means of the postoffice, able to do 
business in states where they could not, if they used local 
agents.^^ And to give a third example, it was argued that an 
efficient means of prohibiting trading in cotton futures would 
be to deny the use of the mails for the furtherance of such 
transactions.^^ The extent to which the Supreme Court has 
thus far recognized in Congress authority of this character, 
is only to sanction the refusal to lend federal aid, by fur- 
nishing postal facilities to the furtherance or consummation 
of gambling and fraudulent schemes. 

One measure of a character somewhat analogous to those 
proposals which we have been considering, has, however, 
already been sustained by the Supreme Court of the United 
States. I refer to the recent so-called " Newspaper Publicity 
Law" which requires publications entered as second-class 
matter (with a few exceptions) to furnish the postoffice de- 
partment with, and publish, a sworn statement giving the 
names and addresses of the owners, editors, and business 
managers, and, in the case of daily newspapers, circulation 
figures. It is provided that " any such publication shall be 
-denied the privileges of the mail if it shall fail to comply 
with the provisions of this paragraph within ten days after 
notice by registered letter of such failure."^^ 

11 See S. 5664, 63d Cong., 2d Sess. (May 26, 1914). 

12 See Regulation of Cotton Exchanges, p. 310 ff. (Hearings be- 
fore the Committee on Agriculture, House of Representatives 
(April, 1914)). See also 63d Cong., 2d Sess., House Rept. 765. It 
should be pointed out that the " trading in futures " that it was 
desired to prohibit was in the nature of gambling contracts and 
had come under the ban of local laws. 

1^ 2,^ Stat. L. 553. A separate and concluding paragraph provides : 
" That all editorial or other reading matter published in any such 
newspaper, magazine or periodical, for the publication of which 
money or other valuable consideration is paid, accepted, or prom- 
ised, shall be plainly marked * advertisement' Any editor or pub- 
lisher printing editorial or other reading matter for which com- 



EXTENSION THROUGH EXCLUSION FROM MAILS 1 6$ 

As claimed in the defendants' brief, when the law went 
before the Supreme Court, Congress had, in effect, at- 
tempted " to regulate journalism." Relying upon its power 
over the postoffice. Congress had threatened those publica- 
tions which enjoy second-class rates with a denial of this 
privilege should they refuse to comply with the conditions ; 
and it was, moreover, made a crime to continue to use the 
mails and violate the stipulation that all reading matter for 
the publication of which a valuable consideration is received, 
" shall be plainly marked * advertisement/ " Such regula- 
tions, without any reference to the use of the mails, would 
be obviously outside the constitutional power of Congress. 

By a narrow, but nevertheless a convincing line of reason- 
ing, the Supreme Court, through Chief Justice White, was 
able to justify the law without being put to the necessity of 
making any definite declaration as to the limits to which 
Congress may go in its exercise of what, lacking a better 
phrase, we may call "indirect regulation under the postal 
power." 

The Court's opinion shows that in the classification of 
mail matter there has been no attempt at uniformity and 
that periodical publications have enjoyed special favors by 
reason of legislative adherence to what has been described 
as the "historic policy of encouraging by low postal rates 
the dissemination of current intelligence."^* It is shown 
that as a condition precedent to being " entered as second 
class mail matter" and enjoying the low rates which are 
maintained at a loss, the government demands an answer 
to a score of questions concerning ownership, editorial 

pensation is paid, accepted, or promised, without so marking the 
same, shall, upon conviction in any court having jurisdiction, be 
fined not less than fifty dollars ($50) nor more than five hundred 
dollars ($500)." 

1* Report of the Commission on Second-Class Mail Matter, p. 
143. In his message of February 22, 1912, transmitting this report 
to Congress, President Taf t said : " The findings of the commission 
confirm the view that the cost of handling and transporting second- 
class mail matter is greatly in excess of the postage paid, and that 
an increase in the rate is not only justified by the facts, but is 
desirable." 



1 66 THE POSTAL POWER OF CONGRESS 

direction, advertising discrimination, specimen copies, and 
circulation. To the Third Assistant Postmaster General is 
given the authority of accepting or rejecting applications of 
entry at the second-class rate.^^ The Supreme Court 
simply considered the law as laying down new conditions, 
compliance with which will continue the right "to enjoy 
great privileges and advantages at the public expense." In 
its opinion the Court says : 

" As the right to consider the character of the publication 
as an advertising medium was previously deemed to be 
incidental to the exercise of the power to classify for the 
purpose of the second class mail, it is impossible in reason to 
perceive why the new condition as to marking matter, 
which is paid for as an advertisement, is not equally in- 
cidental to the right to classify. 

"And the additional exactions as to disclosure of stock- 
holders, principals, creditors, etc., also are clearly incidental 
to the power to classify as are the requirements as to dis- 
closure of ownership, editors, etc., which for so many years 
formed the basis of the right of admission to the classifica- 
tion. We say this because of the intimate relation which 
exists between ownership and debt. . . . 

" Considered intrinsically, no completer statement of the 
relation which the newly exacted conditions bear to the 
great public purpose which induced Congress to continue in 
favor of the publishers of newspapers at vast public ex- 
pense the low postal rate as well as other privileges ac- 
corded by the second class mail classification, can be made 
than was expressed in the report of the Senate Committee 
stating the intent of the legislation — ^that is, to secure to the 
public * in the dissemination of knowledge of current 
events * by means of newspapers, the names, not only of 
the apparent, but of what might prove to be the real and 
substantial owners of the publications and to enable the 
public to know whether the matter which was published was 

^5 Postal Laws and Regulations of 1913, p. 223. 



EXTENSION THROUGH EXCLUSION FROM MAILS 1 6/ 

what it purported to be, or was in substance a paid adver- 
tisement. 

"We repeat that in considering this subject we are con- 
cerned not with any general regulation of what should be 
published in newspapers, nor with any condition excluding 
from the right to resort to the mails, but we are concerned 
solely and exclusively with the right on behalf of the pub- 
lishers to continue to enjoy great privileges and advantages 
at the public expense, a right given them by Congress upon 
condition of compliance with regulations deemed by that 
body incidental and necessary to the complete fruition of 
the public policy lying at the foundation of the privileges 
accorded."^® 

This decision thus applies simply to the suspension of 
second class privileges and not to any general denial of the 
use of the mails. It is significant, moreover, that the Court 
expressly refused assent to the contention of the govern- . 
ment, which as paraphrased in the opinion, was that the law 
merely " imposes conditions necessary to be complied with 
to enable publishers to participate in the great and exclusive 
privileges and advantages which arise from the right to use 
the second-class mail," but that even if "the provision be 
given the significance attributed to it by the publishers, it is 
valid as an exertion by Congress of its power to establish 
postoffices and post roads, a power which conveys an ab- 
solute right of legislative selection as to what shall be 
carried in the mails, and which, therefore, is not in anywise 
subject to judicial control even though in a given case it may 
be manifest that a particular exclusion is but arbitrary be- 
cause resting on no discernible distinction nor coming within 
any discoverable principle of justice or public policy." 

The Court, however, emphatically refused to accept this 
view, saying that " because there has developed no necessity 
of passing on the question, we do not wish even by the 
remotest implication to be regarded as assenting to the 
broad contentions concerning the existence of arbitrary 

^6 Lewis Publishing Co. v. Morgan, 229 U. S. 288 (1913). 



l68 THE POSTAL POWER OF CONGRESS 

power through the classification of the mails, or by way of 
condition, embodied in the proposition of the government 
which we have previously stated." 

The Supreme Court has, however, permitted Congress, in 
the exercise of its taxing power, and less noticeably in its 
control of interstate commerce, to accomplish ends which 
were not included in the enumerated delegations of the Con- 
stitution. Thus, the tax on state bank notes which made 
their issue unprofitable was upheld on the ground that " the 
judiciary cannot prescribe to the legislative department of 
the government limitations upon the exercise of its acknowl- 
edged powers. The power to tax may be exercised op- 
pressively upon persons, but the responsibility of the legis- 
lature is not to the courts, but to the people by whom its 
members are elected. "^^ Such a position in this case, how- 
ever, was easily justified on the ground that Congress had 
the power to stop altogether the issue of the state bank notes 
if it thought that this course was necessary in order to 
provide an effective currency system, and the case thus loses 
much of its apparent importance.^^ 

More illustrative, perhaps, of the plenary power of Con- 
gress with respect to the raising of a revenue, and im- 
possible to justify on such a ground, is the decision uphold- 
ing a tax upon oleomargarine so heavy that it can only be 
manufactured at a loss. Thus, unable directly to control 
manufacture. Congress has achieved the same end through 
the exercise of its taxing power. The Supreme Court said : 

The argument "when reduced to its last analysis comes to 
this : that because a particular department of the govern- 
ment may exert its lawful powers with the object or motive 
of reaching an end not justified, therefore it becomes the 
duty of the judiciary to restrain the exercise of a lawful 
power whenever it seems to the judicial mind that such 



17 Veazie v. Fenno, 8 Wall. 533 (1869). Italics mine. 

18 In Edye v. Robertson, 112 U. S. 580 (1884) the Supreme Court 
said that the imposition " was upheld because a means properly 
adopted by Congress to protect the currency which it had created," 
and the tax was not, therefore, subject to the ordinary rules. 



EXTENSION THROUGH EXCLUSION FROM MAILS 1 69 

lawful power has been abused. But this reduces itself to 
the contention that under our constitutional system, the 
abuse by one department of the government of its lawful 
powers is to be corrected by the abuse of its powers by 
another department. "^^ 

Such reasoning is, it appears, final, although it goes 
farther than the Bank Note Case which declared that " there 
are indeed certain virtual limitations arising from the prin- 
ciples of the Constitution itself. It would undoubtedly be 
an abuse of the power [that of taxation] if so exercised as 
to impair the separate existence and independent self gov- 
ernment of the states or if exercised for ends inconsistent 
with the limited grants of power in the Constitution."^* 
However, although with more guarded language, the Court, 
even in the McCray case, intimated that a judicial veto 
might attach to measures which on their face bore evidence 
of not being tax laws at all, but were transparent in their 
purpose to control subjects not within the power of Con- 
gress. Such a law has not come before the Supreme Court. 

Not so striking, but nevertheless important illustrations 
of this "nullification by indirection"^^ are to be found in 
the interstate commerce legislation of recent years. Con- 
gress has excluded lottery tickets from interstate commerce 
on account of their harmful effect on recipients ;^^ it has 

19 McCray v. U. S., 197 U. S. 2^ (1903). 

20 Veazie v. Fenno, above. The distinction has sometimes been 
drawn between acknowledged powers and implied powers of Con- 
gress. For example, the power to tax and to regulate interstate 
commerce is granted in the Constitution, while that to exclude from 
the mails is implied from the postal clause. From this it is argued 
that Congress may be limited in its indirect control under an implied 
power when the same objection would not apply to the exercise of 
an acknowledged power. (See the brief of James M. Beck in the 
newspaper publicity case, printed in Cong. Rec, December 11, 1912.) 
But this distinction has never been sanctioned by the Supreme Court 
of the United States. 

It is proper, however, in this connection to point out the extra- 
ordinary nature of the taxing power, which is, in Marshall's 
phrase, the " power to destroy." 

21 The term is Mr. J. M. Beck's. See his brief in Lewis Publish- 
ing Co. V. Morgan, supra, and his article, " Nullification by Indi- 
rection," 2.2) Harvard Law Review, 441. 

22 Champion v. Ames, 188 U. S. 321 (1902). 



170 THE POSTAL POWER OF CONGRESS 

assumed a control over the manufacture of food products 
by establishing standards of purity which must be met 
before the articles may begin an interstate journey. ^^ The 
Mann White Slave Act extends federal control to im- 
morality in the states, and in its decision upholding this law, 
the Supreme Court frankly admits that the means exerted 
"may have the quality of police regulations."^* Proposals 
are now made to control manufacturing and trading com- 
panies, whether interstate or not, by compelling them to take 
out federal charters and modify their business practices 
(over which Congress has no direct control) in accordance 
with federal regulations before they will be permitted to 
enjoy the facilities of interstate commerce. It is most 
strongly urged that the national legislature has the power to 
improve labor conditions within the states, the most desired 
manifestation being a law putting articles made by children 
under specified ages in the same class with lottery tickets 
and impure foods. 

Up to this time, however, legislation under the commerce 
clause has developed little necessity for passing upon the 
question whether these ultimate purposes may be considered 
by the courts, for the indirect control effected by the various 
acts is purely incidental in character. It is quite proper for 
Congress to build up an Index Expurgatorius just as it 
has done in the case of the mails, and to say that commerce 
shall not be " polluted " by the carriage of obscene litera- 
ture, impure food, and made an agency to promote im- 
morality. In every case, the power has been exerted on 
things, not on persons, and only once has there been even 
an apparent departure from this theory. Here the Supreme 
Court by a forced interpretation of the statute destroyed 
much of its force. I refer to the " commodities clause " of 
the Hepburn Bill which made it unlawful for any railroad 
to transport, except for its own use, any commodity other 
than timber which it had manufactured, mined, or pro- 

23 Hippolite Egg Co. v. U. S., 220 U. S. 45 (1911). 

24 Hoke V. U. S., 227 U. S. 308 (1913). 



EXTENSION THROUGH EXCLUSION FROM MAILS I /I 

duced, or in which it had any interest. The Court in- 
terpreted this as meaning that the railroad was not for- 
bidden to engage in mining, but that before transporting the 
product, it had to divorce itself from any interest by a 
bona fide sale. Such legislation, however, was " necessary 
and proper" in order to insure the enforcement of the 
regulations providing for equality of rates, publications of 
tariffs, etc. Any other interpretation would have required 
the Court to consider and decide several very "grave con- 
stitutional questions " as to the powers of Congress to regu- 
late the production and ownership of commodities simply 
because they might become subjects of interstate com- 
merce.^^ 

But conceding the authority of Congress to regulate child 
labor indirectly, upon what theory is it based ? In the words 
of a reluctant convert, "the lottery case is authority for 
the doctrine that interstate carriers may be prohibited from 
carrying, or shippers or manufacturers from sending from 
state to state and to foreign countries, commodities pro- 
duced under conditions so objectionable as to be subject to 
control, as to their manufacture, by the states under an 
exercise of their police powers, or of a character designed 
or appropriate for a use which might similarly be forbidden 
by law."^^ Such legislation, however, would be directed 
against the articles produced under the objectionable condi- 
tions, and the manufacturers who employed child labor 
would not be prohibited from using the advantages of in- 
terstate commerce for other articles, not so produced.^^ 

There is an obvious distinction between such legislation 
and that advocated by the money trust committee, a distinc- 

25 U. S. ex rel. Atty. Gen. v. Delaware & H. Co., 213 U. S. 366 
(1909). 

26 Opinion of Prof. W. W. Willoughby, quoted by J. Y. Brinton, 
"The Constitutionality of a Federal Child Labor Law," 62 Univer- 
sity of Pennsylvania Law Review, 501. See 2 Willoughby on the 
Constitution, 738. 

27 A further argument in behalf of this legislation is that it would 
harmonize conflicting state laws which unduly operate in favor of 
certain manufacturers in their use of interstate commerce. 



1/2 THE POSTAL POWER OF CONGRESS 

tion which is suggested, but not stressed, by the Solicitor 
General in the brief filed on behalf of the government in 
the newspaper publicity case : there must be no " regulation 
of the private business of citizens in a manner beyond any 
express or implied power of Congress " on the ground that 
such regulation "imposes as a penalty for disobedience a 
denial of an important federal privilege which Congress 
controls." Any legislation excluding from the mails must 
apply directly to the things mailed, not to the persons using 
the mails. This is a distinction which is evident in the de- 
cisions upholding the interstate commerce legislation, and 
which underlies the argument that Congress may exclude 
commodities manufactured in whole or in part by children. 
The law would operate directly on these commodities, not 
on account of their inherent character (which would prob- 
ably not be different from that of other commodities manu- 
factured by adult labor), but because of the objectionable 
conditions of production. And by a parity of reasoning, 
Congress could exclude from the mails matter relating to 
gambling transactions which might be forbidden under the 
police power of the state, although such matter, on its face, 
would be harmless. But it is an entirely different propo- 
sition absolutely to deny the use of the mails because cer- 
tain persons have refused to comply with conditions, beyond 
the power of Congress directly to impose, which it thinks 
may result in regulating objectionable practices, although 
these may be entirely disassociated from the bulk of the 
matter which has been excluded. 

The briefs of counsel on behalf of the Pujo Committee 
furnish no argument to change the opinion here expressed 
that the proposed legislation would be unconstitutional. 2* 
The validity of the bill is asserted on the ground of the 



28 Brief of Samuel Untermyer and Louis Marshall, Regulation of 
the Stock Exchange, p. 652 ff. This brief argues the matter at 
greater length than does the report of the Pujo Committee (p. 
119 ff.), made the previous year and is in reply to the brief of counsel 
on behalf of the New York Stock Exchange (Regulation of tiie 
Stock Exchange, p. 570 ff.). 



EXTENSION THROUGH EXCLUSION FROM MAILS 1 73 

cases, already considered,^^ upholding the power of Con- 
gress to exclude lottery tickets and fraudulent matter. 
Chief importance, however, seems to be attached to a dictum 
of a District Court which says : 

"If the use of the mails is a privilege which may be 
granted or withheld by Congress, Congress has the power 
to determine what shall be carried and what excluded . . . 
under the power to regulate the mails it has seen proper to 
declare that they shall not be used for any purposes which 
are detrimental to the morals of the people or against public 
policy, and by enacting that the sending of obscene matter 
through the mails shall not be permissible, it has determined 
such acts to be against public policy."^^ In this case the 
only matter before the court was the construction of the 
statute ; there was no question as to the power of Congress, 
and the reasoning making public policy the test is clearly 
obiter. Counsel for the Pujo Committee, however, boldly 
argued as follows : 

" It would therefore be within the competency of Con- 
gress, to prohibit absolutely the transmission through the 
mails of a circular or pamphlet or newspaper containing the 
quotations or information concerning transactions in securi- 
ties on stock exchanges or otherwise, just as it has pro- 
hibited the transmission of circulars containing informa- 
tion with regard to lotteries. Such a prohibition may be ab- 
solute or conditional. Thus Congress might accompany a 
prohibition absolute in form with a proviso that its inhibi- 
tion should not be applicable to " matter relating to securi- 
ties "sold or offered for sale on a stock exchange duly in- 
corporated, whose charter shall contain provisions similar 
to those set forth in the pending bill." Congress, the argu- 

29 Chapters II and IV. See also Burton v. U. S., 202 U. S. 344 
(1909), where there is a dictum that the statute designed to prevent 
the postoffice from being used in aid of fraud " has its sanction in 
the power of the United States, by legislation, to designate what 
may be carried in the mails, and what must be excluded therefrom ; 
such designation and exclusion to be, however, consistent with the 
rights of the people as reserved by the Constitution." 

'•^U. S. V. Musgrave, 160 Fed. Rep. 700 (1908). 



174 THE POSTAL POWER OF CONGRESS 

ment concludes, would simply be laying down a " rule as to 
what shall and what shall not be mailable matter, and in 
making this classification it is giving expression to what it 
conceives to be sound public policy, to the same extent and 
in the same way it does when it enacts any other kind of 
legislation that comes within the constitutional grant of 
legislative powers."^^ 

But, it is submitted, Congress would be doing nothing of 
the sort. In the cases of the lottery tickets and obscene 
matter, the inhibition was on account of the inherent char- 
acter of the matter mailed. If the test was one of public 
policy, as the very broad language of the District Court's 
opinion would seem to indicate, Congress simply declared 
it not sound public policy that the mails of the United 
States should be used in furtherance of transactions that 
were harmful. To be sure the Postmaster General is 
authorized to seize and detain all letters addressed to a per- 
son against whom a fraud order has issued, but this is 
justifiable on the ground that it is reasonably necessary in 

31 Regulation of the Stock Exchange, p. 657. The proposal in the 
Pujo Bill to deny unincorporated stock exchanges the use of the 
telephone or telegraph for the transmission of their quotations, 
raises the question whether Congress may exercise such indirect 
control under the guise of regulating interstate commerce. This 
question is discussed in the briefs (Regulation of the Stock Ex- 
change, p. 570 ff. and p. 660 ff.), and is outside the purview of the 
present essay. From the brief review which I have attempted of 
the interstate commerce cases, however, it does not appear that they 
lend any support to the proposition contended for by the Pujo 
Committee. Generally speaking, the same principles are applicable, 
in relation to the power over interstate commerce as in relation to 
that over the mails as furnishing a means by which indirect control 
may be exerted. But it is proper to point out two possible differ- 
ences: (i) an exclusion from interstate commerce is prima facie a 
" regulation " within the meaning of the grant in the Constitution ; 
an exclusion from the mails, on the contrary, is not made " to estab- 
lish postoffices," and it would seem, therefore, that the inhibition 
would have to be justified as "necessary and proper" to this end; 
(2) postal facilities are established and maintained by Congress for 
use, upon the same terms, by everyone standing in the same relation 
to the government, and it is therefore possible to argue that a denial 
of these facilities would be improper, when an equally arbitrary 
regulation of interstate commerce might not be. Neither of these 
differences, it may be added, is so clear as to be controlling; the 
first seems to me of probable importance, but the second, while it 
has been suggested, is of doubtful validity. 



EXTENSION THROUGH EXCLUSION FROM MAILS 1/5 

order to make effective the regulations against using the 
postoffice to defraud; but Congress has not yet made it a 
crime for anyone, some of whose mail matter may come 
within the inhibition, to deposit in, or take from, the mails, 
letters of a personal and harmless character. It is im- 
proper, then, to argue that in passing the Pujo Bill, Con- 
gress would act " to the same extent and in the same way " 
as it has done in the past. The authority of the fraud order 
decisions is simply that if Congress excludes matter relat- 
ing to gambling transactions (as it probably has the right to 
do), correspondence deposited by or addressed to, the per- 
son suspected of unlawfully using the mails, may be seized 
and detained in order to make the gambling regulations ef- 
fective. But the cases furnish no ground for the belief 
that Congress may penalize the use of the mails by these 
persons for the transmission of matter that is harmless. 
The brief of counsel for the Pujo Committee does not argue 
this point; nor does it take the natural, but nevertheless 
untenable, further position and maintain that Congress may 
make it a crime to deposit this harmless matter in order to 
detect violations of a law excluding information concerning 
gambling contracts. 

On the contrary, counsel conceive the public policy of the 
proposed legislation to be the enforcement of the regulations 
set forth in the pending bill, — regulations that are not con- 
cerned with the character of the mail matter, but with 
persons using the mails. Not even by twisted interpreta- 
tions can the adjudicated cases be made to support such 
reasoning. The ** newspaper publicity law" which marks 
the extreme assertion of congressional authority, applies 
directly to the papers mailed. Only one dictum, of a nisi 
prius court,^^ lays down the test of public policy, and if, 
under its enumerated powers, Congress may legislate in ful- 
fillment of this vague purpose, there would be a good deal 
of difficulty, I fancy, in showing that it would be subserved 
by the enforcement of the proposed regulations. And con- 

^2 U. S. V. Musgrave, above. 



176 THE POSTAL POWER OF CONGRESS 

ceding that Congress may control the postoffice on grounds 
of public policy, the fact that the ends to be attained are 
unconnected with the use of the mails, would prevent the 
legislative fiat from being final, and the enforcement of the 
Pujo Committee's recommendations would be so onerous 
and remote, that it would, I venture, not be permitted.^^ 
Reasoning such as that indulged in by the counsel, more- 
over, disregards the principle that runs through all the cases : 
the enforcement of postal regulations must be consistent 
with the rights reserved to the people. And the Pujo Bill 
attempts to regulate, not the mails, but stock exchanges. 

The first Employers' Liability Case,^* it is submitted, fur- 
nishes sufficient basis to uphold the correctness of the view 
that the proposed legislation is unconstitutional. In these 
cases it was held that the statute was not confined to a 
regulation of interstate commerce, but attempted to control 
persons, not only as to their engaging in interstate com- 
merce, but in other respects, simply because some of their 
activities came under the authority of Congress. Further- 
more, the Supreme Court has held that "there is no such 
connection between interstate commerce and membership in 
a labor organization as to authorize Congress to make it a 
crime against the United States for an agent of an inter- 
state carrier to discharge an employee because of such 
membership on his part."^^ 

There are a number of dicta of the United States Su- 

33 The point here made, to repeat, is that if Congress can legis- 
late on grounds of public policy, its regulations must be connected 
with the use of the mails. The proposed legislation does not seem to 
fulfill this condition, for much, if not the greater part of the matter 
transmitted, would be harmless. It should be added, however (al- 
though the policy of the legislation is not here considered), that, con- 
ceding the power of Congress to act for the accomplishment of pur- 
poses not connected with the proper use of the mails, there are not 
unimportant economic objections to the proposed law. (Regulation of 
the Stock Exchange, p. 527 ff. and p. 585 ff.) These objections, I 
think, would have to be examined by the courts if Congress should 
be allowed the power which I have attempted to show it does not 
possess. 

3*207 U. S. 463 (1907). 

35 Adair v. U. S., 208 U. S. 161 (1907) ; see also Keller v. U. S., 
213 U. S. 138 (1908). 



EXTENSION THROUGH EXCLUSION FROM MAILS I// 

preme Court, particularly in regard to objectionable state 
statutes, which show that attempted indirect regulation is 
considered improper, at least for the local legislatures. 
First in time and importance comes Marshall's famous state- 
ment, that " should Congress under pretext of executing 
its powers, pass laws for the accomplishment of objects not 
entrusted to the government, it would become the painful 
duty of this tribunal, should a case requiring such a decision 
come before it, to say that such an act was not the law of 
the land."^« 

Or, as was said in another case : " The courts are not 
bound by mere forms, nor are they to be misled by mere 
pretenses. They are at liberty — indeed under a solemn 
duty — ^to look at the substance of things, whenever they 
enter upon the inquiry whether the legislature has tran- 
scended the limits of its authority. If, therefore, a statute 
purporting to have been enacted to protect the public 
health, the public morals, or the public safety, has no real 
or substantial relation to those objects, or is a palpable in- 
vasion of the rights secured by fundamental law, it is the 
duty of the courts to so adjudge and thereby give effect to 
the Constitution."^^ No power ought to be sought, much 
less adjudged, "in favor of the United States, unless it be 
clearly within reach of its constitutional charter." The 
courts are "not at liberty to add one jot of power to the 
national government beyond what the people have granted 
by the Constitution."^^ 

The Court has, moreover, adhered to " the great principle 
that what cannot be done directly because of constitutional 
restriction, cannot be accomplished indirectly by legislation 
which accomplishes the same result. . . . Constitutional pro- 
visions," adds Justice Brewer, "whether operating by way 
of grant or limitation, are to be enforced according to their 
letter and cannot be evaded by any legislation which, 

seMcCulloch v. Maryland, 4 Wheat. 316 (1819). 

37 Mugler V. Kansas, 123 U. S. 623 (1887). 

38 Houston V. Moore, 5 Wheat, i (1820). 
12 



178 THE POSTAL POWER OF CONGRESS 

although not in terms trespassing upon the letter and spirit, 
yet in substance or effect destroys the grant or limitation."^^ 

It is, moreover, a serious question whether arbitrary ex- 
clusions from the mails would not abridge the guarantee of 
due process of law. This question has never been before 
the Supreme Court of the United States, but a District 
Court has maintained that " the postal monopoly, if granted 
and exercised by a citizen or a corporation would, from the 
fact of its being a monopoly, make it imperative that all 
persons who paid the postal rates and conformed to the 
reasonable regulations of the postal service should have a 
common right to the use of the mails, and that, because of 
the fact of the monopoly thus granted. This right would 
be protected in the courts if the citizen or the corporation 
controlling the postal service should attempt to deprive him 
of it." 

The court then suggests that if the federal government 
should become the owner of all transportation lines and 
establish a monopoly, facilities would have to be extended 
to all, subject "to such general laws and regulations as to 
rates and the operation of the lines as might be enacted and 
established"; that the right to travel and ship freight 
"would be readily recognized as a property right in the 
citizen and one of which a particular citizen could not be 
deprived except by due process of law. We think the right 
to the use of the mails, though in a degree much less valu- 
able, than the use of the transportation lines, would be 
equally a property right, and one which could not be taken 

39Fairbank v. U. S., 181 U. S. 283 (1901). In Union Bridge Co. 
V. U. S., 204 U. S. 364 (1907) this language was used: "If the 
means employed have no substantial relation to public objects which 
the government may legally accomplish, if they are arbitrary and 
unreasonable beyond the necessities of the case, the judiciary will 
disregard mere forms and interfere for the protection of rights 
injuriously affected by such illegal action. The authority of the 
courts to interfere in such cases is beyond all doubt." See also 
Morgan v. Louisiana, 118 U. S. 455 (1886) ; Postal Tel. Co. v. 
Adams, 155 U. S. 688 (1895) ; Collins v. New Hampshire, 171 U. S. 
30 (1898), and Henderson v. The Mayor of New York, 92 U. S. 
259 (1876). 



EXTENSION THROUGH EXCLUSION FROM MAILS 1 79 

away except by due process of law."*^ The use of this 
property right would, of course, be subject to poHce regu- 
lations by Congress, to the extent that they have been upheld 
by the Supreme Court, or to which this argument concedes 
that they may go, — always applying, however, directly to 
the things mailed. 

One of the methods urged for compelling federal incor- 
poration of trading companies engaged in interstate com- 
merce is the denial of postal facilities to state chartered 
concerns, and concerning this one of the abler advocates 
of such an end, says: "If we are correct in believing that 
due process requires the equal protection of the laws, an 
arbitrary selection or classification is beyond the power of 
Congress. A law which divides those who use the mail 
into two general classes, all state corporations on the one 
hand, and all which are not incorporated by a state on the 
other, does not seem based upon any reasonable difference, 
either in the character of the person or in the kind of mail 
matter sent, which will make the classification more than 
arbitrary selection. The constitutionality of this method, 
therefore, seems open to grave question."*^ The conclu- 
sion of this writer, therefore, is that the constitutionality of 
the Pujo Bill would be open "to grave question" as deny- 
ing due process of law. 

Thus far the proposed extension of federal control by 
forbidding persons to use the mails, has been objected to as 
(in the suggested bill at least) abridging the freedom of the 
press, as not being a bona fide regulation of the mails, as 
attempting to obviate the objection of ultra vires by the use 
of indirect means, and as denying due process of law. 
There is a final consideration, which, while not legally con- 

*o Hoover v. McChesney, 81 Fed. Rep. 472 (1897). "The right 
to mail matter was considered in Teal v. Felton [12 How. 284 
(1851)], but was not established as a right peculiar to citizens." 
Lien, Privileges and Immunities of Citizens of the United States, 
p. 41 (Columbia University Studies in History, Economics and 
Public Law, vol. liv, no. i). But it would not seem that this case 
considered such a subject. 

*i Heisler, Federal Incorporation, p. 86. 



I go THE POSTAL POWER OF CONGRESS 

trolling, is none the less important. Without holding 
strictly to a " literary theory "^^ of the Constitution one can 
regret the apparently growing tendency to disregard consti- 
tutional provisions and to sanction all legislation if, by any 
twisted interpretation, it can be upheld by the courts, al- 
though it may, as in the case of the postoffice proposals con- 
sidered above, be well outside the fairly considered powers 
of the law-making body. This tendency shows an impatience 
of legal restraint, and a disinclination to follow what may be 
called constitutional morality. The phrase is that ^ of 
Grote,*^ who, describing Athenian Democracy in the time 
of Kleisthenes, emphasized the necessity for " a perfect con- 
fidence in the bosom of every citizen, amidst the bitterness 
of party contest, that the forms of the constitution will be 
no less sacred in the eyes of his opponents than in his own." 
Such constitutional morality he called "a natural senti- 
ment" as it exists in the United States, but these words will 
no longer be true if Congress may extend its control in the 
manner proposed, without waiting for a grant of authority 
in the manner provided for by the Constitution.** 

And if the courts should permit such extensions of fed- 
eral control, enormous powers will, by judicial construc- 
tion, be taken from the states and given over to the national 
legislature. For, as it is hardly necessary to remark, the 
denial of postal and interstate commerce faciUties would 
be almost as efficacious as positive legislation ; without using 
the mails and the channels of trade no business could suc- 
cessfully exist. If congressional control may be thus ex- 
tended, every business and every individual needing to use 
the mails would become subject to federal regulation on 
the vague ground of public policy. The reserved powers of 
the states would then exist only by the sufferance of Con- 
gress, and the cardinal theory of the American system— that 
the federal government is one of enumerated powers- 
would become a cynical fiction. 

*2Woodrow Wilson, Congressional Government, p. 12. 

« History of Greece, vol. ii, p. 86. , , ^ ^. ,. a 

4* But see Goodnow, Social Reform and the Constitution, p. 91 n. 



TABLE OF CASES 



Page 

Achison v. Huddleson, 12 Howard, 293 90 

Adair v. United States, 208 U. S. 161 176 

Adams v. The People, i N. Y. 173 147 

American School of Magnetic Healing v. McAnnulty, 187 U. S. 94 58 

Andrews v. United States, 162 U. S. 420 49 

Atlantic Coast Line R. Co. v. Wharton, 207 U. S. 328 133 

Bates & Guild Co. v. Payne, 194 U. S. 106 58 

Battle V. United States, 209 U. S. 36 149 

Blackham v. Gresham, 16 Fed. Rep. 609 43, 93 

Bowman v. Chicago & Northwestern R. Co., 125 U. S. 465 145 

Boyd V. United States, 116 U. S. 616 124 

Brig Wilson, i Brockenborough, 423 113, 127 

Burton v. United States, 202 U. S. 344 173 

California v. Pacific Railroad Co., 127 U. S. i 95, 152 

Chae Chan Ping v. United States, 130 U. S. 581 108 

Champion v. Ames, 188 U. S. 321 117, 169 

Cleveland, P. & A, R. Co. v. Franklin Canal Co., 5 Fed, Cas. 1044 91 

Cohens v. Virginia, 6 Wheaton, 264 136 

Collins V. New Hampshire, 171 U. S. 30 178 

Commonwealth v. Knox, 6 Mass. ^d 131 

Cooley V. Port Wardens, 12 Howard, 299 113 

Crossley v. California, 168 U. S. 640 149 

Debs, In re, 158 U. S. 564 10, 47, 151 

Dickey v. Maysville, etc. Co., 7 Dana {yj Ky.), 113 86 

Dunlop V. United States, 165 U. S. 486 49 

Eastman v. Armstrong Byrd Music Co., 212 Fed. Rep. (£2 56 

Employers' Liability Cases, 207 U. S. 463 176 

Eyde v. Robertson, 112 U. S. 580 168 

Fairbank v. United States, 181 U. S. 283 178 

Fong Yue Ting v. United States, 149 U. S. 698 108 

Golden v. Prince, 10 Fed. Cas. 542 113 

Grand Jury, In re, (i2 Fed. Rep. 834, 840 45 

Grimm v. United States, 156 U. S. 604 49 

Hanover Bank v. Moyses, 186 U. S. 181 114 

Harmon v. Moore, 59 Maine, 428 135 

Hayner v. State, 83 Ohio St. 178 147 

Henderson v. The Mayor of New York, 92 U. S. 259 178 

Hennington v. Georgia, 163 U. S. 299 130 

Hippolite Egg Co. v. United States, 220 U. S. 45 170 

181 



1 82 TABLE OF CASES 



Page 

Hoke V. United States, 227 U. S. 308 52, 113, 170 

Hoover v. McChesney, 81 Fed. Rep. 472 125, 179 

Houston V. Moore, 5 Wheaton, i 177 

Illinois Central R. Co. v. Illinois, 163 U. S. 142 132 

Jackson, Ex parte, 96 U. S. 727 54, 97, no, 114, 115-116, 118, 125 

Keller v. United States, 213 U. S. 138 55, 176 

Knowles v. United States, 170 Fed. Rep. 409 49, 50 

Kohl V. United States, 91 U. S. 367 92 

Lathrop v. Middleton, 23 Cal. 257 135 

Leisy v. Hardin, 135 U. S. 100 146 

Lewis Publishing Co. v. Morgan, 229 U. S. 288.. 98, no, 121, 167-169 
Lottery Case, see Champion v. Ames. 

McCray v. United States, 197 U. S. 27 169 

McCulloch V. Maryland, 4 Wheaton, 316 36, 40, 81, 177 

Mississippi R. Commission v. Illinois C. R. Co., 203 U. S. 335 . . . 133 

Missouri Drug Co. v. Wyman, 129 Fed. Rep. 623 58 

Monongahela Navigation Co. v. United States, 148 U. S. 312 . . . 155 

Morgan v. Louisiana, 118 U. S. 455 178 

Mugler V. Kansas, 123 U. S. 623 177 

Neagle, In re, 135 U. S. i 108 

Neil V. Ohio, 3 Howard, 720 90 

Nelson v. State, 25 Texas App. 599 131 

Newspaper Publicity Case, see Lewis Publishing Co. v. Morgan. 

Osborn v. The Bank of the United States, 9 Wheaton, 738 . .152, 155 

Palliser v. United States, 136 U. S. 257 53, 147 

Patterson v. Colorado, 205 U. S. 458 102 

Pennsylvania v. Wheeling Bridge Co., 18 Howard, 421 93 

Penny v. Walker, 64 Maine, 430 135 

Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 

U. S. I 33, 156 

People v. Croswell, 3 Johns. Cas. (N. Y.) ^yj 100 

Phalen v. Virginia, 8 Howard, 164 53 

Postal Telegraph Co. v. Adams, 155 U. S. 688 178 

Public Clearing House v. Coyne, 194 U. S. 497 49, 57 

Rapier, In re, 143 U. S. no 54, 98, 117, 118, 148 

Regina v. Hicklin, L. R., 3 Q. B. 360 SO 

Reinach v. Cortelyou, 28 App. D. C. 570 58 

Respublica v. Oswald, i Dallas, 319 102 

Rhodes v. Iowa, 170 U. S. 412 146 

Rose Co. V. State, 133 Ga. 353 148 

Rosen v. United States, 161 U. S. 29 50 

Rupert V. United States, 181 Fed. Rep. 87 127 

Schutz V. Dalles Military Road Co., 7 Oregon, 259 90 

Seabright v. Stokes, 3 Howard, 151 88 

Siebold, Ex parte, 100 U. S. 371 114, 144 



TABLE OF CASES I 83 

Page 

Slaughter House Cases, 16 Wallace, 36 102 

State V. Delaye, 68 So. 993 146 

State V. Norfolk & W. R. Co., 33 W. Va. 440 131 

Swearingen v. United States, 161 U. S. 446 49, 50 

Teal V. Felton, 12 Howard, 284 179 

Tennessee v. Davis, 100 U. S. 257 144 

Thomas v. Cincinnati, 62 Fed. Rep. 803 46 

Trombley v. Humphrey, 23 Mich. 472 92 

Turner v. WilHams, 194 U. S. 279 i^) 

Turnpike Co. v. Newlands, 15 N. C. 463 136 

Union Bridge Co. v. United States, 204 U. S. 364 178 

United States v. Barney, 3 Hughes' Reports (U. S. C. C.) ..545, 133 

United States v. Benedict, 165 Fed. Rep. 221 49 

United States v. Bennett, 16 Blatchford, 343 50 

United States v. Bott, 24 Fed. Cas. 1204 56 

United States v. Boyle, 40 Fed. Rep, 664 50 

United States v. Bromley, 12 Howard, 88 42 

United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53 156 

United States v. Chase, 135 U. S. 255 49 

United States v. Clark, 25 Fed. Cas. 443 45 

United States v. Clark, 23 Int. Rev. Rec. 306 135 

United States v. Claypool, 14 Fed. Rep. 127 45 

United States v. Cruikshank, 92 U. S. 542 102 

United States v. Debs, 65 Fed. Rep. 210 46 

United States v. Delaware & Hudson Canal Co., 213 U. S. 366 . . 171 

United States v. DemoUi, 144 Fed. Rep, 363 48 

United States v. Dempsey, 185 Fed. Rep. 450 50 

United States v. De Mott, 3 Fed. Rep. 478 135 

United States v. Easson, 18 Fed. Rep. 590 44 

United States v. Erie R. Co., 235 U. S. 513 45 

United States v. Gettysburg Electric Co., 160 U. S. 668 152 

United States v. Green, 137 Fed. Rep. 179 127 

United States v. Hall, 26 Fed. Cas. 75 42 

United States v. Hall, 26 Fed. Cas. 79 102 

United States v. Hart, i Peters' C. C. 390 131 

United States v. Harvey, 8 Law Reporter, 77 134 

United States v. Hudson & Goodwin, 7 Cranch, 32 83, 108, 119 

United States v. Inlots, 26 Fed. Cas. 482 92 

United States v. Kendall, 5 Cranch (U. S. C. C), 275 28 

United States v. Kennerley, 209 Fed. Rep. 119 50 

United States v. Kimball, 26 Fed. Cas. 782 45 

United States v. Kirby, 7 Wallace, 482 134 

United States v, Kochersperger, 26 Fed. Cas. 803 41, 43, 93 

United States v. Ling, 61 Fed. Rep. looi 49 

United States v. McCracken, 3 Hughes' Reports, 544 135 

United States v. Mills, 7 Peters', 138 41 

United States v. Moore, 104 Fed. Rep, 78 49 

United States v. Musgrave, 160 Fed, Rep. 700 173, 175 

United States v, Nathan, 61 Fed. Rep, 936 49 

United States v, O'Donnell, 165 Fed, Rep, 218 49 

United States v, Pearce, 2 McLean's C, C. R. 14 41 

United States v. Popper, 98 Fed. Rep, 423 49 

United States v. Sears, 55 Fed, Rep, 268 45, 136 



184 TABLE OF CASES 

Pagi 

United States v. Stevens, 27 Fed. Cas. 1312 46 

United States v. Stowell, 133 U. S. i 43 

United States v. Thayer, 209 U. S. 39 147 

United States v. Thompson, 28 Fed. Cas. 97 41 

United States v. United States Express Co., 5 Biss. 91 42 

United States v. Warner, 59 Fed. Rep. 355 49 

United States v. Wilson, 58 Fed. Rep, 768 49 

United States v. Wilson, i Baldwin (U. S. C. C), 78 40 

United States v. Wood, 3 Wash. C. C. R. 440 41 

Veazie v. Fenno, 8 Wallace, 533 168, 169 

West Virginia v. Adams Express Co., 219 Fed. Rep. 794 147 

Wilson V. Shaw, 204 U. S. 24 33 

Zinn V. State, 83 Ark. 273 147 



INDEX 



Abolitionist literature. See In- 
cendiary publications. 

Adams, John Quincy, 78. 

Administrative determination to 
exclude mail matter, conclu- 
siveness of, 57 ff. 

Advertisements of intoxicating 
liquors, 146 ff. 

Amendments to Constitution 
giving Congress power to con- 
struct roads, T^. 

Anarchistic publications and the 
postoffice, 118. 

Antecedents of the postal power, 
9-26. 

Appropriations for national and 
local purposes, 79. 

Arbitration of industrial dis- 
putes, 151. 

Articles of Confederation, ^2, 
76, 81. 

Bache, Richard, 15. 

Baltimore and Ohio Railroad 

Company, 28. 
Bank Note Case, 169. 
Bankruptcy laws, uniformity of, 

114. 
Banks, power of Congress to 

charter, 80. 
Barbour, J. S., 74. 
Beck, J. M., 169 n. 
Bilke, H. W., 108. 
Blackstone's Commentaries, 100, 

lOI. 

Blair, Postmaster General, 51 n. 
Bonaparte, Charles J., 118 ff. 
" Bonus Bill " for road con- 
struction, (£. 
Brewer, Justice, 177. 
Buchanan, James, 110-112. 

Calhoun, J. C, 67 ff., 106 ff., 
136 ff. 

Canals, power of Congress to 
cut, 25; to aid by appropria- 
tion, 72. 



Carter, James C, 148. 

Clapp, Moses E., 35. 

Classification of mail matter, 
29-30. 

Clay, Henry, 71 ff., no. 

Cockburn, Lord, 50. 

Codification of postal laws, 60. 

Collectivist activities of post 
office, Z2)-2>^- 

Commercial power of Congress, 
155, 160. 

Committee of the States, 20. 

" Commodities clause," 170. 

Confederation, Articles of, pos- 
tal clause in, 16; inadequacy 
of the power vested in Con- 
gress by, 20-22. 

Congress, power to establish 
postoffices, 26 ff. ; to secure 
the mails and punish improper 
use, z^ ff • ', to establish post- 
roads, 61 ff. ; to own and oper- 
ate railroads, 150; to own and 
operate telegraphs and tele- 
phones, 156; to extend con- 
trol through exclusions from 
the mails, 158 ff. 

Constitution, grant of postal 
power by, 23. 

" Constitutional American Post- 
office," 13. 

Constitutional Convention and 
postal power, 22-25 ) and power 
to cut canals, 25 ; and freedom 
of press, 98-100. 

Constitutional morality, 180. 

Constitutionality, of excluding 
obscene matter, 51 ; lottery 
tickets and advertisements, 52 ; 
fraudulent matter, 56; an- 
archistic publications, 120; of 
owning railroads, 150 ; of own- 
ing telegraphs and telephones, 
156; of excluding libelous 
matter, 159; of attempting in- 
direct control, 160 ff. 



i«5 



i86 



INDEX 



Continental Congress, establish- 
ment of post by, 13. 

Copyright, publications violat- 
ing, non-mailable, 48 n. 

Cotton futures, trading in, 164. 

Crimes against the mails, 36-56. 

Crimes in postoifices, 149 n. 

Crittenden, Attorney-General, 

131. 
Crumpacker, E. D., 58 ff. 
Cumberland Road, 62 ff., 82. 
Cushing, Caleb, 140 ff. 

Dallas, Secretary, 83. 

Daniels, Justice, 90. 

Davis, John, iii. 

Dead Letter Office, 125. 

Dead letters, 16. 

Debs Cases, 46. 

Defamatory matter non-maila- 
ble, 50. 

Detention of mail, 131 ; by pos- 
tal employee, 133. 

Dicey, A. V., 100. 

Dickey Case, 91. 

Due process of law, 126, 158 ff. 

Eminent domain, federal power 
of, 15, 63, 70, 87, 91-92, 155. 

Establish, meaning of, in postal 
clause, 81. 

Exclusions from mails, and free- 
dom of press, 114; as denying 
due process of law, 178 ff. 

Expansion of postal facilities, 
26-33. 

Extension of federal control 
over postroads, 150; through 
exclusions from the mails, 
158 ff. 

Fairbanks, Richard, 11. 

Farrar, E. H., 154. 

Federal aid for national but not 
local purposes, 95. 

Federal control, extension of, 
through exclusion from the 
mails, 159; under taxing and 
commercial powers, 168-171. 

Federal incorporation of rail- 
roads, 152; of trading com- 
panies, 179. 

Federalist, The, 9, 10, 65. 

First Amendment to Constitu- 
tion, 98 ff. 



Fourth Amendment to Constitu- 
tion, 123 ff. 

Franking privileges, 14, 20, 

Franklin, Benjamin, 12-15, 23. 

Fraud orders, 56-60. 

Freedom of press, 98-123 ; mean- 
ing of constitutional guaran- 
tee, 100 ff. ; abridged by pre- 
venting circulation, 103; and 
exclusions from mails, 158, 
163. 

Freight trains on Sunday, 130. 

Freund, Ernst, 129 n., 159. 

Gallatin, Albert, 63 ff., 82. 
Gambling contracts, 163. 
Gerry, Elbridge, 98. 
Goddard, William, 13. 
Good roads, congressional aid 

for, 34, 80. 
Goodnow, F. J., 180. 
Gouverneur, Samuel L,, 104, 138. 
Granger, Gideon, 27 n. 
Grote, George, 180. 

Hadley, Arthur T., 26. 
Hamilton, Alexander, 99. 
Heisler, R. C, 179, 
Holt, Postmaster General, 143. 

Incendiary publications, by north- 
ern abolitionists, 103 ff . ; power 
of Congress to exclude from 
mails, 107 ff. ; power of state 
to punish officials disseminat- 
ing, 136 ff. 

Index Expurgatorius, postal, 39, 
158; commercial, 170. 

Internal improvements, 2B), 61. 

Interstate commerce, power of 
Congress over, 127 ; analogy to 
postal power, 128; power of 
states to exclude, 145; exclu- 
sion from, of articles made by 
children, 170 ff. 

Intoxicating liquors, excluded 
from mails, 40 ; interstate com- 
merce in, and police power of 
the states, 127. 

Jackson, Andrew, 78 ff., 103. 
Jay, Chief Justice, 62. 
Jefferson, Thomas, 62 ff. 
Johnson, Justice, 81. 
Jones, Samuel, 25. 



INDEX 



187 



Judicial review of fraud orders, 
58 ff. . 

Jurisdiction to try offence of 
depositing non-mailable mat- 
ter, 53. 

Kendall, Amos, 104 ff., 137 ff. 
Kent, Chancellor, 42. 
Kenyon, Lord, 100. 
King, William R., 106. 

Lacey Game Act, 127 n. 

Lee, Richard Henry, 14. 

Letter carrier routes, in cities as 
postroads, 43, 93. 

Libelous publications, 159. 

Limitations on postal power, 97, 
158. 

Lottery advertisements and free- 
dom of press, 116. 

Lottery tickets, excluded from 
mails, 52, 146; in interstate 
commerce, 169, 174 ff. 

Lovelace, Francis, 12. 

McCray Case, 169. 

McLean, Justice, 89. 

Madison, James, 9, 62, 65 ff., 100. 

Mail matter relating to current 
business of carrier, 44. 

Mails, interference with, 10; 
safety of, 19; right of Con- 
gress to compel transportation 
by railroads, 29, 151 ; classifi- 
cation of, 30; what constitutes 
obstruction of, 46; exclusions 
from, 47 ff. ; use of, to de- 
fraud, 56 ff. ; exclusion from, 
to extend federal control, 158- 
180. 

Mala prohibita and mala in se, 
54, 135, 148. 

Mann White Slave Act, 170. 

Marketing by parcel post, 34. 

Marshall, Chief Justice, 36, 81, 
136 n., 153, 154, 169 n., 177. 

Marshall, Louis, 172 n, 

Maryland, Sunday observance in, 

131. 

Mercury (Charleston), 104. 
Money orders, 31. 
Monroe, James, 27, 69; "Views 
on Internal Improvements," 

74 ff. 
Moon, J. A., Z2. 
Morris, Gouverneur, 24. 



Morris, Thomas, 112. 
Municipal streets and postroads, 
150. 

Neale, Thomas, 12. 
Nelson, E. C, 65, 77 n. 
Newlands, Senator, 161 n. 
Newspaper Publicity Law, 121 

ff., 164, 175.. 
Northern Pacific Railroad, 91. 
" Nullification by Indirection,'* 

169 ff. 

Obscene literature, in mails, 48, 
146, 174; definition of, 49; in 
interstate commerce, 170. 

Obstruction of the mail, 45 ff. ; 
what constitutes, 135. 

Ohio, admission as state and 
Cumberland Road compact, 6z. 

Oleomargarine in interstate com- 
merce and state laws, 127; 
federal tax on manufacture 
of, 168. 

Ordinance of 1782, 17-20, z^. 

Original packages, 146. 

Panama Canal Act, 161. 

Parcels post, 30, 34. 

Paterson, William, 22. 

Paterson's plan for Constitu- 
tion, 41. 

Penn, William, 12. 

Penrose, Boies, 51 n. 

Pinckney, C. C., 98. 

Pinckney's plan, 22, 98. 

Police regulations by Congress 
concerning postoffice, 52. 

Postal clause, in Articles of 
Confederation, 16 ; discussion 
of, by constitutional conven- 
tion, 22 ; in Constitution, 23 ; 
poor expression of, 25. 

Postal crimes, severely punished, 
Z7\ obstructing the mail, Z7 ) 
private competition, 37 ; rob- 
bing the mail, 38; meticulous 
enumeration in federal crimi- 
nal code, 39; articles ex- 
cluded, 40; constitutionality of 
laws, 40 ff. 

Postal facilities, recognized func- 
tion of state, 11; beginnings 
of, in America, 12; govern- 
mental monopoly^ of, 14 ; im- 
portance of, 26; in New Zea- 



i88 



INDEX 



land, 33, 36; denial of, to ob- 
jectionable stock exchanges, 
162 ff, ; to insurance com- 
panies, 164. 

Postal laws, codification of, 60. 

Postal monopoly, power of Con- 
gress to establish, 41. 

Postal power of Congress, an- 
tecedents of, 9-26; importance 
underestimated, 11 ; granted by 
Articles of Confederation, 16; 
by Constitution, 23; and free- 
dom of press, 98, 163; limited 
by Fourth Amendment, 123 ; 
may not deny due process of 
law, 178; and police power of 
the states, 127 ff. ; as a means 
of extending federal control, 
158 ff. 

Postal savings banks, constitu- 
tionality of, 32. 

Postal telegraphs and tele- 
phones, 156-157. 

Postmaster general, office of, for 
America created, 12; Franklin 
appointed, 14; duties of, 18; 
salary increased, 28; made 
member of Cabinet, 28. 

Postoffice, American, extension 
of functions, 10; under Arti- 
cles of Confederation, 17-22; 
temporary establishment by 
Congress, 26; expansion of 
power of Congress to estab- 
lish, 26 ff. ; collectivist activi- 
ties, 33- _ 

Postoffice, British, service in 
colonies, 14. 

Postoffice employees, exemption 
from military duties, 15 ; pun- 
ishment by state for perform- 
ing federal duty, 136 ff. 

Postroads, power of Congress 
to establish, 10, 61 ff . ; to ap- 
propriate for, but not con- 
struct, 72; power of states 
over, 84 ff. 

Power of states to delay car- 
riage of mails, 131 ff. 

Presbyterian Church, 127. 

Press, freedom of, 54, 98 ff., 103, 
158, 163. 

Preston, William C, 106. 

Princeton, robbery of mail at, 20. 



Prize fights, moving picture 
films of, 158. 

Publicity of corporate affairs, 
161. 

Publishers granted special pos- 
tal rates, 29. 

Pujo Money Trust Committee, 
162, 172 ff. 

Questione Sociale, La, 118 ff. 

Railroads, federal incorpora- 
tion of, ID, 94; subsidies to, 
for carrying mails, 2& ff . ; in 
Alaska, 80; as postroutes, 92. 

Receipt of mail matter, power 
of state to forbid, 145 ff. 

Religious freedom, 159. 

Republican form of govern- 
ment, guarantee to state of, 
144. 

Right to use the mails, 52, 112, 
178 ff. 

Road construction and transpor- 
tation of mails, 61 ff. 

Roosevelt, Theodore, 51 n., 118, 
150. 

Rural free delivery, 34. 

Schofield, Henry, loi n., 102, 
117 n. 

Schroeder, Theodore, 51 n. 

Searches and seizures, unrea- 
sonable, 123 ff. 

Sealed letters and packages, not 
open to inspection, 124 ff. 

Second class privileges, 121, 
164 ff. 

Secretary of agriculture, 34. 

Secretary of labor, 35. 

Sedition, power of Congress to 
punish, 103, 107; constitution- 
ality of sedition act, 107. 

Semple, James, 85. 

Sherman, Roger, 23, 98. 

Sherman Act, 161. 

Southern Patriot (Charleston), 
104. 

State bank notes, tax on, 168. 

State laws preventing circula- 
tion of incendiary matter, 104. 

States, consent of, for construc- 
tion of postroads, 72, 82; au- 
thority of, over postroads, 96; 
power of, to interfere with the 
mails, 127 ff. 



INDEX 



189 



Stock exchanges, incorporation 

of, 162 ff. 
Story, Joseph, 9, 10, 81 n., 99 n., 

108. 
Sunday mails, 128 ff. 
Sunday observance laws, 130. 

Taft, President, 165 n. 

Taney, Chief Justice, 88, 91, 134. 

Tappan, Arthur, 104. 

Taxation for purposes of regu- 
lation, 168. 

Taxing power of Congress, 160. 

Taylor, Hannis, 55, 97. 

Telegraphs, federal ownership of 
systems, 10, 156. 

Telephones, federal ownership 
of, 10, 156. 

Tolls, right of state to charge 
mail carriers, 136 ff. 

Tonnage duties, 61. 

Tucker, John Randolph, 108, 
142. 

Unemployment bureaus and the 
postoffice, 35. 

Unmailable matter, 47 ff. ; large 
packages, 47; articles likely to 
damage mail, 47; intoxicants, 
48; obscene matter, 48; show- 



ing defamatory language, 50; 

lottery tickets, 52; fraudulent 

matter, 56. 
Untermyer, Samuel, 172 n. 
Use of mails as crime against 

state, 146 ff. 
Use of mails as privilege or 

right, 173. 

Van Buren, Martin, 74. 
Von Hoist, H. E., 75, 95, 97. 

Wakeman, T, B., 51 n. 
Washington, George, 62. 
Webb-Kenyon Act, 113 n., 127 

n., 146 n., 148. 
West Virginia prohibition law, 

147. 
White, Chief Justice, 165. 
Wickersham, Geo. W., 44. 
Willoughby, W. W., 159, 170. 
Wilson, James, 2^. 
Wilson, Secretary, 35. 
Wilson, Woodrow, 180. 
Wilson Act, 127 n. 
Wise, Governor, 142. 
Working on Sunday, state laws 

to punish, 130. 

Young, J. S., 62 n., 77 n. 



VITA 

Lindsay Rogers was born in Baltimore on May 23, 1891. 
He attended the public schools, studied under private tutors, 
and received the degree of Bachelor of Arts from the Johns 
Hopkins University in 1912. He then began graduate 
work in Political Science under the direction of Professor 
Willoughby, with Private Law (LL.B., University of 
Maryland 191 5) and Political Economy as subordinate sub- 
jects. He was a University Fellow, 1914-1915, and was 
admitted to the Maryland Bar in 191 5. Since 1909 he has 
done considerable newspaper work. 



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